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THE  LIBRARY 

OF 

THE  UNIVERSITY 

OF  CALIFORNIA 

LOS  ANGELES 

SCHOOL  OF  LAW 

Gift  of 
LeriLti -ivio^d  Co. 


INDEX-DIGEST 


OREGON  AND  WASHINGTON 

REPORTS 


raCLODING  VOLUMES  1  TO  U  ORE&ON,  AND  1  AND  2  WASHINGTON. 


By  CHARLES  H.  CAREY,  LL.  B. 


SAN  FRANCISCO: 
BANCROFT-WHITNEY    CO:\[PANY, 

Law  Publishers  and  Law  Booksellers. 

1888. 


6 


Entered  according  to  Act  of  Congress  in  tlie  year  1888, 

By  BANCROFT-WHITNEY  COMPANY, 

In  the  Oilicc  of  the  Librarian  of  Congress,  at  Washington. 


PREFACE. 


Tnis  work  has  been  prepared  while  I  have  been  engaged  in 
active  practice  at  the  bar,  and  although  the  task  has  been 
somewhat  arduous,  it  has  not  been  devoid  of  interest  and 
profit.  If  it  now  proves  an  aid  to  others,  I  will  be  doubly  re- 
paid. Where  there  are  so  few  reported  decisions  as  in  Oregon 
and  Washington  Territory,  the  bench  and  bar  arc  more  or  less 
familiar  with  them.  The  chief  use,  therefore,  of  such  a  work  is 
to  afford  ready  means  of  turning  to  a  case  wanted.  The  utility 
of  a  digest  which  will  present  a  broader  statement  of  the  prop- 
ositions of  law  adjudicated  than  can  be  done  in  a  mere  index 
is,  on  the  other  hand,  scarcely  less  apparent.  I  have  therefore 
adopted  a  plan  not  materially  differing  from  the  index-digest 
system  which  has  become  so  popular  of  late  years,  and  hope 
by  this  method  to  combine  the  advantages  of  both  index  and 
digest. 

No  extended  explanation  is  necessary.  It  should  be  said, 
l)Owever,  that  I  have  not  confined  myself  to  a  consideration  of 
the  points  suggested  by  the  syllabi  of  the  cases,  and  have,  in- 
deed, frequently  had  occasion  to  note  points  decided  that  are 
not  referred  to  by  the  reporter,  as  well  as  in  some  few  instances 
to  correct  manifest  errors.  The  reference  to  book  and  page  is 
always  to  the  first  page  of  tbe  case  as  reported,  whether  the 
point  referred  to  is  to  be  found  in  the  syllabus  or  only  upon 
a  careful  reading  of  the  body  of  the  opinion.  When  two  or 
more  propositions  are  given  as  decided  in  the  same  case,  the 


iv  Preface. 

number  of  the  book  and  page  is  given  with  the  first  stated,  and 
the  subsequent  propositions  refer  to  the  case  by  the  use  of  the 
abbreviation  "  Id."  I  have  added  also  a  list  of  citations,  and 
a  table  of  cases  arranged  alphabetically. 

This  work  is  not  put  forth  with  confidence  that  it  is  perfect, 
but  it  is  believed  that,  though  errors  may  be  discovered  on  put- 
ting it  to  the  test  of  practical  use,  the  need  for  such  a  book 
warrants  its  publication,  and  it  is  hoped  that  its  imperfections 
may  be  forgiven  if  it  be  found  useful  and  convenient. 

CHARLES  H.   CAREY. 


DIGEST 

OF  THE 

OREGON  AND  WASHINGTON  REPORTS. 


Abandonment.      See   Appeals    and    Errors;     Dedication; 
Eminent  Domain;    Mines  and  Mining;  Public  Lands; 
Water  and  Watercourses. 
Abatement.     See  Nuisances. 

Pleading  to  the  merits  waives  matter  in  abatement: 
Winter  and  Lattimer  v.  Norton,  1  Or.  42. 

Answer  in  abatement  should  be  pleaded  separately,  and 
disposed  of  before  answer  to  merits:  Ilopwood  v.  Patter- 
son, 2  Or.  49. 

Plea  of  pendency  of  former  suit  for  same  cause  of  action 
should  show  it  is  still  pending:  Id. 

Denial  of  corporate  existence,  and  matter  in  bar,  cannot 
be  pleaded  and  tried  together:  Oregon  Central  R.  R. 
Co.  V.  Wait,  3  Or.  91;  Oregon  Central  R.  R.  Co.  v. 
Scoggin,  3  Or.  IGl ;  Oregon  Cascade  R.  R.  Co.  v.  Baily, 
3  Or.  164. 

Denial  of  corporate  existence  stricken  out  when  pleaded 
with  matter  in  bar:  Oregon  Central  R.  R.  Co.  v. 
Scoggin,  3  Or.  161. 

Matter  in  abatement  and  bar,  being  pleaded  in  same  an- 
swer, leave  to  amend  as  to  the  matter  in  abatement 
should  bo  denied:  Id. 

On  motion,  defendant  declining  to  elect  between  the  de- 
fenses, the  matter  in  abatement  stricken  out:  Oregon 
Cascade  R.  R.  Co.  v.  Baily,  3  Or.  164. 

When  denial  of  corporate  existence  is  abatement,  and 
when  bar:  Id. 

Partner  sued  on  joint  note  may  plead  misjoinder  and 
non-joinder:  Kamm  v.  Marker,  3  Or.  208. 

Ok.  Dig.— 1 


2  Abatement. 

Abatement  (continued). 

In  action  against  wife  alone,  coverture  at  the  time  of 
making  tlie  contract  is  matter  in  bar,  but  the  fact  of 
marriage  since  making  the  contract  is  pleadable  in 
abatement:  Kennard  v.  Sax,  3  Or.  263. 

Defense  that  the  plaintiff  has  sold  and  does  not  own  the 
account  sued  on,  is  not  available,  unless  pleaded  in 
abatement:  Derkeny  v.  Belfils,  4  Or.  258. 

Abatement  of  appeal  in  criminal  case  by  death  of  de- 
fendant leaves  judgment  for  costs  in  force:  Whitley  v. 
Murphy,  5  Or.  328. 

Executrix  substituted  on  motion  as  party  plaintiff,  ob- 
jection to  her  qualification,  unless  taken,  by  abatement, 
is  waived:  Murray  v.  Murray,  6  Or.  26. 

Pendency  of  suit  in  equity  on  same  controversy  is  not 
usuallv  ground  to  abate  action  at  law:  Farris  v.  Hayes, 
9  Or.  81. 
Abortion. 

Instructions  held  sufhcient  in  manslaughter  by  attempted 
abortion:  State  v.  Glass,  5  Or.  73 
Absconding  Debtor. 

Absconding  debtor  defined:  Norman  v.  Zieber,  3  Or.  197. 
Accessaries. 

When  one  strikes  the  fatal  blow,  and  the  other  is  present 
and  assisting,  both  are  principals:  State  v.  Fitzhugh, 
2  Or.  227. 

Acts  of  each  person  involved  in  a  criminal  enterprise  ren- 
der all  responsible  for  the  results:  State  v.  Johnson,  7 
Or.  210. 

Testimony  of  accomplice  alone  is  not  sufficient  to  warrant 
conviction:  State  v.  Odell,  8  Or.  30. 

Proof  that  prisoner  was  in  the  same  town  at  the  time  is 
not  alone  sufficient  corroboration:  Id. 

One  present  aiding  and  abetting  may  be  convicted  on 
an  indictment  charging  him  directly  with  the  commis- 
sion of  the  act:  State  v.  Kirk,  10  Or.  505. 

An  accessary  before  the  fact  is  not  a  competent  witness 
on  behalf  of  the  prisoner:  Edwards  v.  Territory,  1 
W.  T.  195. 

The  statutes  of  1862-63  do  not  alter  the  rule  of  the  com- 
mon law  in  this  respect:  Id. 
Accession.     See  Water  and  Watercourses. 


Accounts.  3 

Accomplices.     See  Accessaries. 

Accord  and  Satisfaction.     See  Compromise;  Settlement. 

Account-books.     See  Evidence. 

Accident.     See  Mistake  and  Accident. 

Accounting. 

When  partners  arc  entitled  to,  and  what  complaint  must 
show:  Pool  V.  Buffum,  3  Or.  440. 

Referee  for  an  accounting  between  partners  should  ascer- 
tain what  the  profits  were;  not  what  they  should  have 
been:  Boire  v.  McGinn,  8  Or.  466. 

Dissolution  partly  consummated,  equity  will  take  juris- 
diction for  an  accounting,  and  ascertain  amounts  due 
on  final  settlement:  Gleason  v.  Van  Aernam,  9  Or.  343. 

An  agreement  entered  into  between  the  partners  on  such 
partial  dissolution  will  be  recognized  and  enforced  in 
the  suit  in  equity  for  an  accounting:  Id. 

Suit  for,  against  former  commissioners  of  school  lands, 
may  be  maintained  in  the  name  of  the  state:  State  v. 
Chadwick  and  Brown,  10  Or.  423. 

In  such  suit  allegations  in  the  answer  that  the  funds  were 
expended  in  payment  of  just  and  legal  claims  against 
the  state  are  mere  conclusions  of  law,  and  tender  no 
■  issue  of  fact:  Id. 

Right  of  a  joint  owner  to  an  accounting  of  the  earnings 
of  a  ferry:    Ilackett  v.  Multnomah  County,  12  Or.  124. 

In  a  suit  by  an  assignor  against  an  assignee  for  the  bene- 
fit of  creditors,  for  an  accounting,  when  parties  can 
recover  costs  and  attorneys'  fees:  Kinney  v.  Heatley, 
13  Or.  35. 

In  a  suit  between  partners  for  an  accounting,  they  are 
usually  severally,  but  not  jointly,  liable:  Bloomfield  v. 
Buchanan,  14  Or.  181. 

But  where  there  is  a  concerted  action  by  some^  the 
partners  to  exclude  one  from  the  profits,  they  are  jointly 
and  severally  liable:  Id. 
Accounts.     See  Partnership. 

If  an  account  furnished  on  demand  for  items  under  the 
statute  is  insufficient,  the  rernedy  is  by  motion  to  make 
the  same  more  definite  and  certain:  Flanders  v.  Ish,  2 
Or.  320. 

No  interest  allowed  on  mutual  accounts  until  after  settle- 
ment and  balance  struck:  Catlin  v.  Knott,  2  Or.  321. 


4  Accounts. 

Accounts  (continued). 

Claims  against  the  state,  allowed  by  the  secretary  of 
state,  do  not  thereby  become  accounts  stated,  and  may 
be  shown  in  collateral  attack  to  be  illegal  claims:  State 
V.  Brown,  10  Or.  215. 

What  is  an  open  mutual  account  within  the  subdivision 
3,  section  539,  Civil  Code  (sec.  549,  Hill's  A.  L.),  relat- 
ing to  costs:  Hayden  v.  Waymire,  10  Or.  307. 

Proper  verification  of  an  itemized  account  sued  on,  fur- 
nished on  demand:  Robbins  v.  Benson,  11  Or.  514. 

Objection  to  the  verification  if  not  made  promptly  is 
waived:   Id. 

Account  stated  is  prima  facie  a  settlement  of  all  de- 
mands, but  not  conclusive,  and  does  not  bar  recovery 
of  debt  existing  at  the  time  and  not  included:  Nor- 
mandin  v.  Gratton,  12  Or.  505. 

Evidence  is  admissible  in  an  action  on  an  account  stated 
to  show  that  certain  matters  were  not  included:  Id. 

False  and  fraudulent  representations  accompanying  ren- 
dering of  an  account  afford  ground  for  disputing  ac- 
count stated:  Kinney  v.  Heatley,  13  Or.  35. 

A  letter  containing  an  account  rendered,  and  not  objected 
to  within  a  reasonable  time,  is  evidence  of  the  facts 
contained:  Smith  v.  Kennedy,  1  W.  T.  55. 

The  failure  to  object  to  an  account  stated,  within  reason- 
able time,  creates  presumption  of  correctness,  and  shifts 
burden  of  proof:  Baxter  v.  Waite,  2  \V.  T.  228. 

The  statement  of  the  account,  not  by  agreement,  but  by 
silence,  creates  not  a  new  contract  by  estoppel,  but  es- 
tablishes prima  facie  the  correctness  of  the  items:  Id. 

Error  to  instruct  that,  after  an  account  is  stated,  a  party 
not  objecting  within  reasonable  time  is  bound  thereby, 
imlcss  he  establish  errors  and  a  want  of  knowledge  on 
his  part  of  the  existence  of  the  errors  at  the  time  of  the 
rendering  of  the  account  to  him:  Id. 

Error  to  instruct  that  the  defendant  would  not  be  liable 
on  items  in  which  he  discovered  errors  or  mistakes  up 
to  the  time  of  commencement  of  suit:  Id. 

Such  instruction  precludes  defendant  from  taking  ad- 
vantage of  errors  ascertained  after  commencement  of 
the  suit  up  to  the  time  of  trial:  Id. 


Acknowledgments.  6 

Accounts  (continued). 

To  create  an  account  stated  by  way  of  estoppel,  what 
knowledge  is  necessary:  Id. 

Interest  is  not  recoverable  on  an  open  account  unless 
stipulated  for:   Id. 

Pleadings  admitting  a  portion  of  an  open  account  sued 
on,  the  plaintiff  is  entitled  to  interest  on  the  part  ad- 
mitted,  from  the  time  of  the  commencement  of  th-a 
action:   r>reen)er  v.  Burgees,  2  W.  T.  290. 
Acknowledgments. 

Of  deeds  out  of  the  state,  statute  must  be  strictly  com- 
l)lied  with:  Knighton  v.  Smith,  1  Or.  27G. 

A  deed  is  good  between  the  parties,  unacknowledged: 
Moore  v.  Thomas,  1  Or.  201;  Mann  v.  Young,  1  W.  T. 
454. 

Without  acknowledgment,  a  married  woman  does  not  re- 
linquish dower  by  signing  husband's  deed:  Mann  v. 
Young,  1  W.  T.  454. 

Recorded  unacknowledged  mortgage  is  no  notice  to  sub- 
sequent mortgagee:  Id. 

Acknowledgment  of  feme  covert,  not  showing  separate  ex- 
amination, a  parol  showing  cannot  be  made:  Ilarty  v. 
Ladd,  3  Or.  353. 

Parol  evidence  not  admissible  to  impeach  certificate  regu- 
lar on  its  face,  unless  there  are  allegations  in  the  plead- 
ings to  warrant  it:  Dolph  v.  Barney,  5  Or.  192;  Moore 
V.  Fuller,  6  Or.  272. 

Acknowledgment  taken  by  a  deputy  clerk  without  naming 
his  principal,  good  under  territorial  law  of  185G  by 
which  deputy  is  an  independent  officer :  Willamette 
County  v.  Oordon,  G  Or.  175. 

Deeds  and  powers  of  attorney,  not  acknowledged,  but 
duly  executed  in  1845  and  1846,  may  be  proved  under 
sections  17  and  18,  page  517,  General  Laws  (sees.  3018, 
3019,  Hill's  A.  L.)  to  entitle  them  to  record:  Wson  v. 
McEwan,  7  Or.  87. 

Deed  not  entitled  to  record,  but  recorded,  is  not  entitled 
to  priority  over  mortgage  acknowledged  and  entitled  to 
record,  and  executed  and  recorded  at  same  time  as  the 
deed:  Fleschner  v.  Sumpter,  12  Or.  161. 

Certificate  in  proof  of  unacknowledged  deed  must  show 
the  witnesses  were  sworn,  and  must  state  that  fact: 
Mclntyre  v.  Kamm,  12  Or.  253. 


6  Acknowledgments. 

Acknowledgments  (continued). 

Unacknowledged  deed  conveys  title,  and  is  good  as  against 
every  one  but  a  bona  fide  purchaser  for  a  valuable  con- 
sideration: Manandas  v.  Mann,  14  Or.  450;  Mann  v. 
Young,  1  W.  T.  454. 

Such  deed,  to  be  followed  by  evidence  of  notice,  is  admis- 
sible as  evidence  against  one  who  has  a  subsequent 
deed  duly  recorded:   Mann  v.  Young,  1  W.  T.  454. 

Statute  of  1867  curing  defectively  acknowledged  deeds  is 
constitutional,  and  applicable  to  case  of  married  women: 
Skellinger  v.  Smith,  1  \V.  T.  369. 

The  authority  of  a  notary  public  to  take  the  acknowledg- 
ment of  a  deed  cannot  be  questioned  collaterally:  Bul- 
lene  v.  Garrison,  1  W.  T.  587. 

Validity  of  a  deed  acknowledged  before  a  county  auditor 
in  1867,  not  authenticated  by  his  seal,  is  not  decided; 
but  if  defective,  it  was  cured  by  Curative  Act,  p.  481, 
Laws  of  1873:  Kenyon  v.  Knipe,  2  W.  T.  422. 
Actions  and  Suits.  See  Accounting;  Assumpsit;  Bills 
and  Notes;  Contracts;  Corporations;  District  Attorney; 
Fraud  and  Deceit;  Forcible  Entry  and  Detainer;  .Judg- 
ment; Landlord  and  Tenant;  Liens;  Malicious  Prose- 
cution; Parties;  Pleading;  Practice;  Replevin;  Quo 
Warranto;  Slander  and  Libel;  Statute  of  Limita- 
tions. 

No  action  lies  to  recover  back  money  paid  under  mistake 
of  law  without  fraud:  Johnson  v.  McGinness,  1  Or.  292. 

Amendment  of  section  93  (sec.  95,  Hill's  A.  L.)  of  the 
Code  relating  to  distinction  in  practice  in  equity  or  law 
cases  does  not  affect  pending  cases:  Newsom  v.  Green- 
wood, 4  Or.  119. 

Proceeding  by  indictment  is  an  "action  at  law"  within 
the  section  of  the  gambling  law  of  1876  (Hill's  A.  L., 
c.  45),  providing  for  the  recovery  of  fines  and  forfeit- 
ures: State  V.  Carr,  6  Or.  133. 

Suit  is  deemed  pending  until  an  appeal  is  perfected  or 
the  period  for  taking  appeal  has  expired:  6  Or.  166; 
Garrison  v.  Cheeney,  1  W.  T.  489. 

Suit  cannot  be  brought  in  the  name  of  the  state  to  try 
private  controversy:  Wilson  and  Wakeman  v.  Shively, 
10  Or.  267. 


Actions  and  Suits.  7 

Actions  and  Suits  (continued). 

State  has  power  to  bring  suit  in  its  name  for  an  account- 
ing against  persons  having  charge  of  school  funds: 
State  V.  Chadwick  and  Brown,  10  Or.  423. 

Essential  distinctions  between  actions  and  suits  are 
not  abrogated  by  the  Code:  Knowles  v.  Herbert,  11  Or. 
54;  S.  C,  11  Or.  240;  Beacannon  v.  Liebe,  11  Or.  443; 
Burrage  v.  B.  G.  &  Q.  M.  Co.,  12  Or.  169. 

Proceedings  supplemental  to  execution  are  proceedings 
at  law:  Burrage  v.  B.  G.  &  Q.  M.  Co.,  12  Or.  169;  Wil- 
liams V.  Gallick,  11  Or.  337;  contra,  Murne  v.  Schwa- 
bacher  Bros.  &  Co.,  2  W.  T.  130. 

When  the  mode  of  proceeding  is  not  pointed  out  by  the 
Code,  the  Circuit  Court  has  jurisdiction  to  enforce  a 
right,  and  a  remedy  may  be  adopted  conformable  to 
the  spirit  of  the  Code:  Aiken  v.  Aiken,  12  Or.  203. 

Statute  giving  cumulative  damages  to  party  aggrieved  is 
remedial,  and  not  criminal,  and  the  action  is  a  civil 
action:  O'Keefe  v.  Weber,  14  Or.  55. 

Proceedings  had  in  a  suit  in  accordance  with  the  law  in 
effect  at  tlie  time  are  valid,  and  amendment  to  the  law 
operates  only  upon  subsequent  proceedings:  Marks  & 
Co.  V.  Crow,  14  Or.  382. 

An  act  of  the  legislative  assembly  destroying  distinctions 
between  law  and  equity,  and  establishing  single  form 
of  action  to  establish  and  enforce  private  rights,  is  in  vio- 
lation of  the  Organic  Act:  Stevens  v.  Baker,  1  W.  T.  315. 

Organic  act  contemplates  distinction  between  courts  of 
law,  chancery,  and  admiralty,  and  their  procedure:  Id. 

In  the  absence  of  local  equity  system,  the  rules  adopted 
by  the  Supreme  Court  of  the  United  States  are  bind- 
ing: Id. 

"Civil  actions  "  under  Code  of  1869,  included  action  at 
law  and  suits  in  equity:  Garrison  v.  Cheeney^l  W.  T. 
489.  ^ 

Pleadings  and  proceedings  in  both  classes  Of  cases  were 
to  be  governed  by  the  provisions  of  that  act:  Id. 

By  the  Amended  Code  of  1871,  the  distinction  between 
law  and  equity  was  aflirmed:  Id. 

Actions  at  law  were  thereafter  to  be  governed  by  the  Code, 
and  equity  cases  by  the  laws  of  the  United  States  and 
the  rules  of  the  Supreme  Court  thereof:  Id. 


8  Actions  and  Suits, 

Actions  and  Suits  (continued). 

An  action  for  divorce  is  a  proceeding  at  law:  Tierney  v. 
Tierney,  1  W.  T.  568. 

It  is  against  public  policy  for  persons  to  occupy  the  atten- 
tion of  the  courts  with  pretended  litigation,  in  which 
there  are  no  questions  to  be  judicially  determined: 
Connoly  v.  Cunningham,  2  W.  T.  242. 
Administration.  See  Administrators  and  Executors;  Lega- 
cies;  Heirs;  Wills. 

A  law  passed  after  the  death  of  an  intestate,  but  before 
distribution  of  his  estate,  controls  such  distribution: 
Armstrong  v.  Armstrong,  1  Or.  207. 

Claims  presented  must  be  verified  by  the  claimant,  and 
not  by  his  agent:  Zachary  v.  Chambers,  1  Or.  321. 

Where  there  is  no  legal  presentment  of  claim  within  the 
statutory  time,  it  is  barred  to  suit  thereon:   Id. 

Administrators,  executors,  and  guardians  are  the  claim- 
ants who  must  present  claims  due  the  estate  or  persons 
they  represent:  Id. 

Sale  by  executors  who  are  mere  naked  trustees  to  sell 
and  convey  need  not  be  reported  to  Probate  Court: 
Hogan  V.  Wyman,  2  Or.  302;  Hogan  v.  Wyman,  7  Or. 
285. 

County  Court  has  no  power  to  determine  what  persons 
are  entitled  to  realty  and  partition  the  same:  Hanner 
V.  Silver,  2  Or.  336,  Burnside  v.  Savier,  6  Or.  154. 

County  Court  is  a  court  of  superior  jurisdiction  in  probate 
matters:  Russell  v.  Lewis,  3  Or.  380;  Tustin  v.  Gaunt, 
4  Or.  305. 

Recitals  of  jurisdictional  facts  in  orders  for  sale  of  prop- 
erty are  presumed  true,  and  the  burden  of  proof  to  the 
contrary  is  on  attacking  party:  Tustin  v.  Gaunt,  4  Or. 
305. 

Mistake  in  making  up  the  record  is  presumed  rather  than 
that  order  of  sale  was  made  before  return  day:  Id.;  and 
see  Walker  v.  Goldsmith,  14  Or.  125. 

Estate  acquired  by  heirs  of  settler  on  donation  claim,  who 
dies  before  completing  his  four  years'  residence,  and 
before  patent,  not  subject  to  administration:  Delay  v. 
Chapman,  3  Or.  459. 
Sale  of  decedent's  real  property  void  where  infant  heir 
was  not  made  party,  and  did  not  appear  by  guardian: 
Fiske  v.  Kellogg,  3  Or.  503. 


Administration.  9 

Administration  (continued). 

Under  statute  of  1855,  heirs  are  necessary  parties  to  a 
proceeding  to  sell  a  decedent's  realty,  and  court  must 
acquire  jurisdiction  of  the  parties:   Id. 

Purchaser  at  administrator's  sale  has  no  right  to  appeal 
from  order  of  sale  or  order  of  confirmation:  Levy  v. 
Riley,  4  Or.  392. 

Recitals  in  order  of  sale  may  be  disputed  by  parts  of 
judgment  roll  showing  want  of  jurisdiction:  Gilmore  v. 
Taylor,  5  Or.  89. 

Provision  in  will  directing  that  wife  and  minor  children 
have  use  of  realty  until  disposed  of  by  executor,  valid: 
Humphrey  v.  Taylor,  5  Or.  260. 

Order  to  sell  realty,  and  confirmation  unnecessary,  where 
executors  are  mere  naked  trustees  in  whom  the  legal 
title  is  vested:   Brown  v.  Brown,  7  Or.  285. 

Acts  done  in  administration  under  a  will  duly  probated, 
but  afterwards  held  invalid,  are  binding:  Id. 

After  disallowance  of  a  claim,  and  final  settlement  of  es- 
tate without  objection,  creditor  cannot  sue  next  of  kin 
on  his  claim:  Grange  Union  v.  Burkhart,  8  Or.  51. 

County  Court  has  exclusive  jurisdiction  over  distribution 
of  the  personalty:   Winkle  v.  Winkle,  8  Or.  193. 

An  antenupital  contract  in  regard  to  the  personalty  must 
be  presented  and  given  effect  by  the  County  Court, 
and  equity  cannot  afford  relief  where  it  is  not  done:  Id. 

Neglect  to  appeal  from  order  of  distribution  concludes  the 
parties,  and  the  order  becomes  final:   Id. 

Before  dower  is  assigned,  widow  has  no  estate  in  dece- 
dent's lands,  and  no  right  to  the  rents:  Leonard  v. 
Grant,  8  Or.  276. 

The  rents  and  profits  are  to  be  applied  to  the  payment  of 
the  debts  agjlinst  the  estate  until  dower  is  assigned:  Id. 

A  "  claim  "  against  an  estate  is  a  legal  denumd  fof~money 
to  be  paid  out  of  the  estate,  and  must  have  been  re- 
coverable from  deceased  if  he  had  lived :  Weill  v.  Clark's 
Estate,  9  Or.  387. 

A  mere  equitable  right,  not  enforceable  in  a  Probate 
Court,  is  not  a  claim:   Id. 

Tender  by  an  heir  to  pay  a  claim  against  the  estate  will 
not  be  ground  for  refusing  an  order  for  sale  of  real 
property  of  the  estate  to  pay  such  claim:  Id. 


10  Administration. 

Administration  (continued). 

Whether  an  order  is  intended  as  a  final  order  or  not  is  to 

be  determined  by  the  intention  of  the  court:  Harvey's 

Heirs  v.  Wait,  10  Or.  117. 
Petition   for  sale  of  realty  is  jurisdictional,   and    must 

strictly  comply  with  the  statute:  Wright  and  Jones  v. 

Edwards,  10  Or.  298. 
Sale  is  void  on  collateral  attack  where  jurisdiction  does 

not  appear  affirmatively  from  the  petition:  Id. 
County  Court  has  exclusive  jurisdiction  to  settle  final  ac- 
counts  of  administrator:    Adams  v-.   Petrain,    11    Or. 

304. 
Action  cannot  be  maintained  against  administrator  on  his 

bond  until  his  accounts  have  been  settled  in  the  County 

Court:  Id.;  and  see  Hamlin  v.  Kinney,  2  Or.  91. 
County  Court  has  exclusive  jurisdiction  to  grant  and  re- 
voke letters  of  administration:  Ramp  v.  McDanicl,  12 

Or.  108. 
Error  in   appointing   creditor   administrator   before   the 

widow  declines  to  act,  when  not  taken  advantage  of  by 

applying   for  appointment   within   statutory  .  time,    is 

waived:  Id. 
Order  appointing  or  removing  administrator  cannot  be 

collaterally  attacked:  Id. 
Power  of  County  Court  to  allow  administrator  to  resign 

is  not  limited  to  the  mode  prescribed  by  statute:  Id. 
Probate   powers   of    County   Court  are   not   created   by 

statute,  but  are  thereby  enlarged,  limited,  or  varied: 

Id. 
Widow  is  entitled  to  dwelling-house  for  one  year,  and  this 

right  is  not  affected  by  section  1094  Civil  Code  (sec. 

112G,  Hill's  A.  L.):  Aiken  v.  Aiken,  12  Or.  203. 
But  husband  must  have  been  seised  of  the  land,  and  not 

have  held  a  mere  leasehold  interest:  Id. 
Widow  cannot  obtain  possession  by  ejectment  or  forcible 

entry  and  detainer:  Id. 
Objection    to  a  claim  for  informality  must  specify  the 

ground,  or  the  objection  is  waived:   Aiken  v.  Coolidge, 

12  Or.  244. 
Residue  defined;    it  is  ascertained  on  presentation  and 

allowance  of  final   account,  and   residuary  legatee   is 

then  entitled  to  take:  Leahy  v.  Cardwcll,  14  Or.  171. 


Administration.  1 1 

Administration  (continued). 

Such  legatee  is  not  chargeable  with  interest  on  notes 
given  to  executor  for  funds  belonging  to  the  estate  after 
final  settlement:  Id. 

The  effect  of  section  371,  Civil  Code  (sec.  375,  Hill's 
A.  L.),  is  to  abolish  the  common-law  rule,  making 
one  who  wrongfully  interferes  with  an  estate  an  execu- 
tor dc  son  tort:  Rutherford  v.  Thomp.son,  14  Or.  236. 

But  such  person  is  held  liable  after  appointment  of  ad- 
ministrator by  an  action  at  law  in  the  name  of  the 
administrator:    Id. 

And  in  such  action  such  person  may  show  in  mitigation 
of  damages  that  he  used  the  proceeds  of  the  property 
to  pay  the  debts  of  the  estate:  Id. 

Administrator  takes  entire  charge  of  the  estate,  whether 
it  passes  to  an  heir  by  descent,  or  otherwise:  Ward  v. 
Moorey,  1  W.  T.  104. 

In  the  absence  of  statute,  surviving  partner  has  absolute 
control  of  partnership  effects:  Barlow  and  Shepherd  v. 
Coggan,  1  W.  T.  257. 

Remedy  cannot  be  had  against  executor  of  deceased 
partner  for  partnership  debt,  unless  the  partnership 
property  is  insufficient  to  satisfy  it:  Id. 

Presentment  and  demand  of  a  promissory  note  signed  by 
partners  should  be  made  of  surviving  partner,  and  not 
of  executor  of  deceased  partner:  Id. 

General  provision  that  claim  must,  before  suit  brought, 
be  presented  to  administrator  has  no  api^lication  to 
such  case:  Id. 

Courts  do  not  recognize  the  personal  representative  of  a 
deceased  person  appointed  by  foreign  state:  Id. 

In  Washington  Territory  property  vested  in  a  non-resi- 
dent administrator  is  liable  to  attachment  and  other 
process:  Id.  — 

On  the  decease  of  an  intestate  pre-emptor,  whose  title  at 
time  of  death  was  inchoate,  a  salable  possessory  right 
passes  to  the  administrator:  Burch  v.  McDaniel  and 
Johnson,  2  W.  T.  58. 

Administrator  of  a  deceased  pre-emptor  takes  his  de- 
cedent's possessory  right  subject  to  a  trust  requiring 
him  to  complete  the  title,  if  of  advantage  to  the  heirs, 
and  if  he  can  do  so:  Id. 


12  Administration. 

Administration  (continued). 

For  the  discharge  of  this  duty,  administrator  is  liable  as 
for  the  discharge  of  any  other  duty:  Id. 

Aside  from  this  trust,  administrator  is  free  to  dispose  of 
this  possessory  right  for  the  benefit  of  the  estate:  Id. 

The  pre-emption  statutes  place  the  one  restriction  on  the 
administrator,  viz.,  a  continuance  of  the  restriction  on 
the  pre-emptor  against  transferring  any  interest  in  the 
land:  Id. 

Sale  of  personal  property  of  estate,made  by  executor  with- 
out order  of  court,  may  be  ratified"  by  the  court  if  ad- 
vantageous to  the  estate:  Brewster  v.  Baxter,  2  W.  T. 
135. 

So  one  interested  in  the  estate  may  ratify  such  sale  to 
the  extent  of  his  interest:  Id. 

Instruction  to  the  effect  that  a  demanding  of  an  account- 
ing by  one  interested  in  the  estate,  of  the  proceeds  of 
such  invalid  sale,  with  full  knowledge  of  the  facts,  is  a 
ratification  of  the  sale,  is  not  erroneous:  Id. 

Failure  to  verify  a  petition  which  is  the  foundation  of  pro- 
bate proceedings  is  but  an  irregularity,  and  does  not 
render  the  proceedings  subject  to  collateral  attack: 
McCoy  V.  Ayres,  2  W.  T.  203. 

Transcript  of  record  of  Probate  Court  in  Oregon,  showing 
that  that  court  had  assumed  jurisdiction  over  certain 
notes,  is  prima  facie  evidence  that  they  were  within  the 
state  of  Oregon  at  the  time:  Id. 

In  an  action  by  administrator  against  a  son  of  the  de- 
ceasd  for  misappropriation  of  part  of  the  estate,  a 
brother  of  the  defendant  is  a  competent  witness  in  his 
behalf:  INIcCoy  v.  Ayres,  2  W.  T.  807. 

In  such  case  the  brother  is  not  interested  adversely  to  the 
estate,  and  does  not  come  within  the  statute  forbidding 
party  in  interest  to  the  record  from  testifying:  Id. 

Action  will  not  lie  at  common  law  against  one  collecting 
debts  due  an  estate,  for  the  reason  that  the  original 
debtor  remains  liable:  Id. 

But  in  the  case  of  specific  chattels  taken,  the  rule  is  other- 
wise: Id. 

Suit  in  equity  can  be  maintained  against  a  person  so  col- 
lecting, if  it  be  shown  that  the  original  debtor  is  insol- 
vent: Id. 


Administrators  and  Executors.  13 

Administration  (continued). 

Notes  found  in  the  state  of  Oregon,  at  the  place  of  death 
of  the  deceased,  are  properly  payable  in  that  state, 
though  secured  by  mortgage  in  Washington  Territory: 
Id. 

An  accounting  for  such  notes  to  the  Probate  Court  in 
Oregon   relieves  administrator,   appointed   there,  from 
liabiUty  in  an  action  in  Washington  Territory  by  ad- 
ministnitor  appointed  there:  Id. 
Administrators  and  Executors.     See  Administration. 

Executor  and  his  sureties  are  not  liable  on  his  bond  until 
default  of  the  executor  in  Probate  Court:  Hamlin  v. 
Kinney,  2  Or.  91;   Adams  v.  Petrain,  11  Or.  304. 

Executors  of  a  naked  trust  to  sell  and  convey  need  not 
qualify  or  make  report  of  sale:  Hogan  v.  Wyman,  2 
Or.  302. 

Possession  and  control  of  executor  over  property  is  that 
of  an  owner  for  purposes  of  taxation:  Johnson  v.  Oregon 
City,  2  Or.  327;  Johnson  v.  City  Council  of  Oregon 
City,  3  Or.  13. 

Control  of  administrator  over  an  estate,  under  section 
1088  (sec.  1120,  Hill's  A.  L.),  is  limited  by  sections 
llGl  and  1162  of  the  Code  (sees.  1193,  1194,  Hill's 
A.  L.),  providing  for  proceedings  to  set  aside  the  share 
of  an  heir  or  other  person  in  an  estate:  Hanner  v. 
Silver,  2  Or.  336. 

Situs  of  personalty  is  with  resident  rather  than  with 
non-resident  co-executor:  Johnson  v.  City  Council  of 
Oregon  City,  3  Or.  13. 

Administrator  has  no  right  or  interest  in  the  estate  of 
the  heirs  of  a  settler  on  donation  claim,  who  dies  be- 
fore patent  issues:  Delay  v.  Chapman,  3  Or.  459. 

Administrator  has  no  right  to  sue  to  set  aside  a  convey- 
ance made  by  his  decedent  fraudulently,  withoutr-4cave 
of  court:   King  and  Lownsdale  v.  Boyd,  4  Qr.  326. 

Eiglit  to  real  estate  limited  to  purposes  of  administra- 
tion: Id.;  Humphreys  v.  Taylor,  5  Or.  260. 

When  ordered  to  file  new  bond  and  fails  to  comply, 
deemed  removed  and  his  authority  ceased:  Levy  v. 
Riley,  4  Or.  392. 

Purchaser  at  sale  of  sucli  administrator,  without  knowl- 
edge, is  entitled  to  relief  in  equity:  Id. 


14  Administrators  and  Executors. 

Administrators  and  Executors  (continued). 

Executor,  or  his  heirs,  are  not  allowed  interest  on  setting 
aside  a  conveyance  to  the  executor  of  land  of  the 
estate  bought  in  by  him:  Layton  v.  Hogue,  5  Or.  93. 

Cannot  maintain  action  for  the  recovery  of  possession  of 
real  property  of  the  estate:  Humphreys  v.  Taylor,  5 
Or.  260. 

On  death  of  plaintiff,  if  executrix  is  upon  motion  substi- 
tuted as  plaintiff  in  the  action,  objection  to  her  appoint- 
ment must  be  taken  by  plea  in  abatement,  or  is  waived : 
Murray  v.  Murray,  6  Or.  26. 

Though  such  executrix  is  not  regularly  appointed,  and 
entitled  to  sue  as  such,  she  is  a  proper  party  if  she  be 
the  legatee  to  the  real  property  in  controversy,  and 
therefore  the  successor  in  interest  of  the  plaintiff:  Id. 

Administrator's  bond  failing  to  express  penal  sum,  mis- 
take not  presumed  against  sureties:  Evarts  v.  Steger,  5 
Or.  147. 

Such  bond  is  void,  and  cannot  be  reformed  in  equity: 
Evarts  v.  Steger,  6  Or.  55. 

Administrator  has  no  authority  to  partition  real  estate  of 
partnership:  Burnside  v.  Savier,  6  Or.  154. 

Where  the  estate  is  indebted,  the  administrator  is  a 
trustee  for  the  creditors,  and  may  show  that  a  bill  of 
sale  made  by  his  intestate  was  intended  fraudulently 
as  a  chattel  mortgage:  Bartel  v.  Lope,  6  Or.  321. 

Where  the  will  directs  payment  of  debts,  and  the  realty 
is  devised  to  executors  as  trustees  to  hold  for  certain 
purposes,  they  have  implied  power  to  sell  portions  to 
pay  the  debts:  Brown  v.  Brown,  7  Or.  285. 

Administrator  is  entitled  to  control  real  estate  and  use 
the  rents  and  profits  to  pay  the  debts,  and  widow  is 
not  entitled  to  receive  one  third  of  the  rents  before 
dower  is  assigned:  Leonard  v.  Grant,  8  Or.  276. 

Action  against  administrator  cannot  be  commenced 
within  six  months  after  letters  issued:  Wells  v.  Apple- 
gate,  10  Or.  519.     . 

Allegation  in  the  complaint  that  the  order  of  appoint- 
ment was  made  on  a  certain  day  is  not  an  allegation 
that  letters  issued  on  that  day:  Id. 

But  after  verdict  it  is  presumed  that  the  executors  quali- 
fied immediately  after  letters  issued:  Aiken  v.  Coolidge, 
12  Or.  244. 


Admiralty.  15 

Administrators  and  Executors  (continued). 

Not  liable  on  bond  for  delinquencies  until  their  accounts 
have  been  settled  in  County  Court,  even  though  re- 
moved for  misconduct  before  the  estate  is  fully  admin- 
istered: Adams  v.  Petrain,  11  Or.  304. 

Property  in  the  hands  of  executor  before  distribution  is 
in  custody  of  the  law,  and  not  subject  to  garnishment: 
Harrington  v.  La  Rocque,  13  Or.  344. 

But  after  distributive  share  has  been  ordered  paid  to  dev- 
isee, it  is  subject  to  garnishment:  Id. 

Assignee  of  devisee  may  notify  executor  of  the  assign- 
ment of  such  share  to  him,  and  so  require  payment  to 
be  made  to  him :  Id. 

But  assignee  cannot  have  a  decree  of  court  on  distribu- 
tion ordering  such  payment  to  be  make  to  him;  and 
any  such  decree  is  void  on  collateral  attack:  Id. 

Administrator   takes  charge  of  the  entire  estate  of  the 
decedent,  whether  it  passes  to  the  heir  by  descent  or 
otherwise:  Ward  v.  Moorey,  1  W.  T.  104. 
Admiralty.     See    Boats   and   Vessels;    Common   Carriers; 
Masters. 

No  new  evidence  can  be  received  in  admiralty  cases  by 
the  Supreme  Court:  Cutler  v.  Steamship  Columbia,  1 
Or.  101;  Nickels  v.  Griffin,  1  W.  T.  374;  contra,  Phelps 
V.  S.  S.  City  of  Panama,  1  W.  T.  615. 

Collision  case  between  brig  and  steamer  on  the  Columbia 
River:  Cutler  v.  Steamship  Columbia,  1  Or.  101. 

Rule  in  admiralty  suits  in  rem  and  in  personam  as  to 
charging  a  ship  as  carrier:  Seller  v.  Steamship  Pacific, 
1  Or.  409. 

•Power  of  master  to  bind  owner  of  vessel:  Gove  v.  Moses, 
1  W.  T.  7. 

Material-men  have  no  lien  on  domestic  ^'x?ssel  injiome 
port,  or  that  where  the  owner  resides;  though  circum- 
stances may  qualify  the  rule:  Price,  Green,  &  Co.  v. 
Lightner,  1  W.  T.  33. 

Surrender  of  possession  is  a  waiver  of  lien:  Id. 

Statute  of  California  creates  no  lien  until  the  proceedings 
are  instituted  to  enforce  the  liability  as  therein  pro- 
vided: Id. 

There  being  no  such  lien  created  in  this  case,  the  court, 
sitting  in  admiralty,  can  exercise  no  jurisdiction:  Id. 


16  Admiralty. 

Admiralty  (continued). 

Courts  of  admiralty  proceeding  in  rem,  in  a  proper  case, 
sometimes  recognize  and  enforce  maritime  claims  of  an 
equitable  character  not  actual  liens:  Id. 

Claims  for  brokerage,  factorage,  etc.,  held  a  charge  for 
which  the  ship  was  liable,  to  be  paid  out  of  funds  in 
the  court:  Id. 

Vessels  navigating  Puget  Sound,  as  those  on  the  sea,  must 
observe  the  rules  established  by  the  board  of  inspection 
of  the  United  States:  Meigs  and  Talbot  v.  Steamship 
Northerner,  1  W.  T.  78. 

Failure  of  vessel  to  exhibit  lights  does  not  excuse  another 
from  faults  contributing  to  a  collision:  Id. 

Vessel  without  lights  is  in  fault,  unless  she  govern  herself 
by  the  lights  of  approaching  steamer:  Id. 

When  collision  is  the  result  of  mutual  faults,  damages 
and  costs  should  be  equally  apportioned:  Id.;  Puget 
Sound  C.  Co.  V.  Taylor,  2  W.  T.  93. 

Omission  to  decree  costs  in  admiralty  case  docs  not  pre- 
vent the  decree  from  being  final:  Sloop  Lconede  v. 
United  States,  1  W.  T.  153. 

Costs  rest  largely  in  the  discretion  of  an  admiralty  court, 
and  omission  in  decree  is  presumptive  that  court  did 
not  intend  to  decree  costs:  Id. 

Mode  of  appeal  in  admiralty  in  Washington  Territory  is 
the  same  as  from  District  to  Circuit  Court  of  United 
States:  Id. 

Manner  of  appeal  and  review  in  admiralty  cases  specifi- 
cally pointed  out  and  distinguished:  Id. 

Supreme  Court  of  the  territory  has  made  no  rules  govern- 
ing appeal  in  admiralty  cases;  as  to  whether  it  has 
power  to  do  so,  quaere:  Nickels  v.  Griffin,  1  W.  T.  374. 

Supreme  Court  of  the  United  States  has  made  no  rules 
governing  the  territorial  court  in  such  appeals:  Id. 

Neither  Congress  nor  the  territorial  legislature  have  at- 
tempted to  regulate  admiralty  practice  in  the  District 
Courts  of  the  territory:  Id. 

District  Courts  of  the  territory  are  free  to  adopt  the  admi- 
ralty rules  of  the  United  States  District  Court:  Id. 

In  the  absence  of  rules  or  law  of  Congress  regulating  ap- 
peals in  admiralty  cases  to  the  Supreme  Court  of  the 
territory,  the  statutes  of  the  territory  prevail:  Id. 


Admiralty.  17 

Admiralty  (continued). 

Admiralty  cases  must  come  to  the  Supreme  Court  by  ap- 
peal: Id. 
The  simple  relation  of  master  and  servant  does  not  ex- 
press the   more  complex  relation  of  shipmaster   and 
crew:  Id. 
Such  relation  has  been  likened  to  that  of  parent  and 
child,  teacher  and  pupil,  and  head  of  a  family  to  his 
domestic  servants:  Id. 
The  trust  of  the  master  is  the  care  of  his  vessel,  cargo, 
crew,  passengers,  and  the  promotion  and  transaction  of 
his  vessel's  business:  Id. 
The  maintaining  of  good  order  on  his  vessel  is  one  of  the- 

duties  of  a  master:  Id. 
There  is  an  implied  contract  in  shipping  articles  of  obedi- 
ence on  the  part  of  the  sailor  and  protection  on  the  part 
of  the  master:  Id. 
As  against  himself,  a  master  is  conclusively  presumed 

competent  to  discharge  his  duties:  Id. 
Where  a  master  permits  his  mate,  without  sufficient  cause,, 
to  inflict  personal  injuries  on  a  seaman,  he  is  liable  as. 
though  personally  guilty:  Id. 
The  lower  court  properly  refused  to  admit  certain  excul- 
patory evidence  on  the  part  of  the  master:  Id. 
Admiralty  jurisdiction  is  vested  in  District  Court  of  Wash- 
ington Territory:  Phelps  v.  S.  S.  City  of  Panama,   1 
W.  T.  518. 
Before  the  adoption  of  the  federal  constitution,  admiralty- 
law  was  local  and  territorial,  but  became  part  of  the 
laws  of  the  United  States,  with  its  procedure,  by  the: 
adoption  of  the  constitution:  Id. 
Law  maritime  and  admiralty  was  in  the  territory  as  part 
of  the  local  law  before  the  territory  was  erected,  and 
was  then  to  be  classed  among  the  laws  of  the  Terri- 
tory, as  referred  to  in  the  Organic  Act:  Id. 
Law  admiralty,  as  a  federal  law,  displaced  the  territorial 
admiralty  law  by  virtue  of  act  of  Congress  extending 
to  the  territory  the  laws  of  the  United  States  not  inap- 
plicable: Id. 
Name  of  libelant,  unnecessarily  inserted  in  libel,  should 
be  stricken  out  if  motion  is  made  at  proper  stage;  other- 
wise, will  not  be  noticed:  Id. 

On.  Dig.— 2 


18  Admiralty. 

Admiralty  (continued). 

Suit  is  properly  brought  in  rem  for  personal  injuries  occa- 
sioned to  passenger  by  negligence  in  violation  of  duty 

as  carriers:  Id. 
The  circumstance  that  the  subject  of  transportation  is  a 

person  instead    of  merchandise  should   not  alter  the 

rule:  Id. 
No  right  of  trial  by  jury  in  such  case:  Id. 
To  warrant  reversal  on  the  facts,  there  should  be  such 

preponderance  as  would  warrant  setting  aside  verdict 

of  a  jury:  Id. 
A  deposition  to  be  used  in  an  admiralty  case  may  properly 

be  taken  before  a  notary  public:   Phelps  v.  S.  S.  City  of 

Panama,  1  W.  T.  615. 
Practice  in  taking  depositions  in  admiralty  cases  is  gov- 
erned by  the  rules  of  the  United  States  courts  and  stat- 
utes of  the  United  States,  and  with  the  statutes  there 

must  be  strict  compliance:  Id. 
Opening  a  deposition  by  the  clerk,  and  placing  same  on 

file  without  order  of  the  court,  in  such  case,  precludes 

its  being  received  in  evidence:  Id. 
Appeals   from   District  to   Supreme   Court  in  admiralty 

must  be  taken  in  accordance  with  the  civil  law:  Steamer 

Zephyr  v.  Brown,  2  W.  T.  44. 
Allowance  of  such  appeal  is  necessary  by  the  lower  court 

to  give  the  appellate  court  jurisdiction:  Id. 
In  the  absence  of  rule  or  statute,  such  appeal  must  be 
.      taken  during  a  sitting  of  the  court,  or  at  the  time  of 

sentence:  Id. 
And  must  be  taken  to  the  next  succeeding  term  of  the 

appellate  court:  Id. 
No  written  petition  for  appeal  or  for  apostles  is  necessary 

when,  at  time  of  sentence,  the  court  allows  time  for 

appeal:   Waddell  and  Miles  v.  Steamer  Daisy,  2  W.  T. 

7G. 
The  action  of  the  court,  in  such  case,  in  granting  time 

for  the  appeal,  was  sufficient  letters  dismissory  of  the 

cause:  Id. 
Practice  has  made  the  filing  of  an  appellatory  libel,  as 

known  to  the  civil  law,  unnecessary:  Id. 
No  monition  issuing  out  of  the  Supreme  Court  to  the  trial 

court   to   transmit  the  cause  is  necessary,  especially 


Adverse  Possession.  19 

Admiralty  (continued). 

where  there  is  no  unwillingness  on  the  part  of  the  judge 
of  the  lower  court:  Id. 

Steamer  not  liable  to  owner  of  material  used  in  building 
machinery  furnished  her,  where  such  owner  furnished 
the  same  to  one  who  had  a  contract  to  build  the  machin- 
ery, and  owners  and  agents  of  vessel  did  not  authorize 
using  said  material:  Id. 

Test,  whether  contract  for  furnishing  materials  is  a  mari- 
time contract,  is  whether  vessel  is  so  far  finished  at 
the  time  that  anything  further  done  on  her  Avould,  in 
its  nature,  be  maritime:  Id. 

Libel  averring  the  material  was  used  in  building  the  ves- 
sel demonstrates  that  the  contract  was  non-maritime, 
and  court  has  no  jurisdiction  in  rem:  Id. 

Doubt  expressed,  of  power  of  legislature  to  confer  on 
courts  power  to  entertain  suits  in  rem  in  admiralty  for 
materials  furnished  in  building  a  vessel:  Id. 

Section  823,  Revised  Statutes,  and  those  following  it,  de- 
termine the  tariff  of  fees  for  clerks  of  territorial  courts 
in  admiralty  cases:  Id. 

Under  admiralty  rule  IG,  suit  in  rem  against  vessel  for 
assault  upon  seamen  by  officers  is  precluded:  Smith  v. 
Ship  Challenger,  2  W.  T.  447. 

The  remedy  is  by  action  in  personam:  Id. 
Adverse  Possession.    See  Dedication;  Possession;  Statute 
of  Limitations. 

Quiet  and  exclusive  possession  is  evidence  of  title  until  a 
better  is  shown:  Oregon  Cascade  R.  R.  Co.  v.  Oregon 
Steam  Nav.  Co.,  3  Or.  178. 

Purchaser  of  several  town  lots  and  blocks  residing  on 
one  block,  his  occupancy  is  not  adverse  as  to  the  other 
lots  or  blocks,  unoccupied  and  unimproved,  against 
one  having  prior  title:  Wilson  v.  McEwan,  7  Or.  8/. 

Person  in  adverse  possession  erecting  a  wooden  build- 
ing on  blocks  or  posts  cannot  remove  it  when  ousted 
by  the  rightful  owner:  Doscher  v.  Blackiston,  7  Or. 
143. 

Person  entering  under  color  of  title  is  presumed  to  enter 
and  occupy  to  the  boundaries  expressed  in  the  title: 
Phillipi  V.  Thompson,  8  Or.  428;  Joy  v.  Stump,  14  Or. 
361. 


20  Adverse  Possession. 

Adverse  Possession  (continued). 

Person  claiming  by  adverse  possession  may  prove  color  of 
title  under  a  tax  deed,  though  the  description  therein 
is  imperfect:  Smith  v.  Shattuck,  12  Or.  3G2. 

Adverse  possession  of  real  property  for  the  statutory 
period  ripens  into  a  perfect  title  and  becomes  a  vested 
right  as  though  evidenced  by  written  title:  Parker  v. 
Metzger,  12  Or.  407;  Joy  v.  Stump,  14  Or.  361. 

Grant  of  easement  is  presumed  from  adverse  enjoyment 
for  statutory  period:  Johnson  v.  Knott,  13  Or.  308. 

Payment  of  taxes  by  the  owner  of  the  soil  is  not  incon- 
sistent with  acquisition  of  such  right:  Id. 

Must  be  an  occupancy  under  claim  of  ownership,  though 
it  need  not  be  under  color  of  title:  Swift  v.  Mulkey,  14 
Or.  59. 

Deed  of  quitclaim  or  other  instrument  that  purports  to 
convey  title  is  sufficient  to  constitute  color  of  litle:  Id. 

Where  title  to  land  is  in  an  infant,  his  mother  residing  on 
the  land  as  a  family  residence,  collecting  rents  in  his 
name,  and  listing  the  property  for  taxation  in  his 
name,  cannot  acquire  title  by  adverse  possession :  Law- 
rence V.  Lawrence,  14  Or.  77. 

The  possession  must  be  hostile;  husband  and  wife  can- 
not occupy  jointly,  adverse  to  each  other:  Springer  v. 
Young,  14  dr.  280. 

There  must  be  a  disseisin,  which  must  be  an  actual  ex- 
pulsion for  the  full  statutory  period:  Id. 

Adverse  possession  for  statutory  period  confers  such  title 
as  will  support  an  action  in  ejectment:  Joy  v.  Stump, 
14  Or.  3G1. 

Possession  as  foundation  of  adverse  claim  must  be  actual 
occupancy,  and  will  not  be  extended  by  construction 
beyond  actual  limits  of  the  occupation:  Id. 

Possession  of  donation  claim  by  a  party  claiming  under 
a  quitclaim  deed,  executed  before  completion  of  resi- 
dence and  cultivation  for  four  years,  is  possession 
under  contract  prohibited  by  law,  and  gives  no  color  of 
title:  Bullene  v.  Garrison,  1  W.  T.  587. 

Such  possession  cannot  be  adverse,  so  as  to  entitle  pos- 
sessor to  benefit  of  statute  of  limitations:  Id. 

One  buying  city  lot,  according  to  plat  showing  a  street 
bounding  the  lot,cannot,  by  adverse  possession  or  claim 


Affidavits.  21 

Adverse  Possession  (continued). 

under  previous  title,  acquire  a  right  to  the  land  em- 
braced in  such  street:  Moore  v.  City  of  Walla  Walla,  2 
W.  T.  184. 
Adultery.     See  Divorce. 
Afiidavits.     See  Pleadings;  Summons. 

Aflidavits  in  support  of  motion  for  leave  to  file  answer 
cannot  bo  heard  on  appeal  from  default:  Cain  v.  Harden, 
1  Or.  3C0. 

Counter-afiidavits  may  be  filed  on  application  to  set  aside 
decree  under  section  57  of  Code  (sec.  58,  Hill's  A.  L.): 
Smith  V.  Smith,  3  Or.  363. 

Aflidavit  in  support  of  cross-motion  for  leave  to  perfect 
appeal  should  be  filed  before  motion  comes  on  for  hear- 
ing: Cross  v.  Chichester,  4  Or.  114. 

Of  sureties  on  undertaking  on  appeal  must  be  filed  contem- 
poraneously with  undertaking:  llolcomb  v.  Teal,  4  Or. 
352;  Aiberson  v.  Mahafi'ey,  6  Or.  412;  State  v.  McKin- 
more,  8  Or.  207. 

Upon  affidavit  of  inability  to  pay,  a  party  will  not  be  re- 
quired to  pay  trial  fee:  Bailey  v.  Frush,  5  Or.  136. 

Aflidavit  for  immediate  delivery  in  replevin  no  part  of  the 
pleadings:  Moser  v.  Jenkins,  5  Or.  447. 

Aflidavits  are  not  admissible  to  impeach  a  record  show- 
ing appearance  and  answering:  Cauthorn  v.  King,  8 
Or.  138. 

Affidavit  for  attachment  need  only  state  the  ultimate 
facts:  Crawford  v.  Roberts,  8  Or.  324. 

Counter-affidavit  in  proceeding  for  contempt  is  not  a  plead- 
ing, but  is  evidence  merely,  and  may  be  rebutted  with- 
out replication:  State  v.  McKinnon,  8  Or.  487. 

Aflidavit  in  support  of  motion  for  an  order  to  abate  a 
nuisance  is  a  part  of  the  judgment  roll  and  transcript 
on  appeal  from  such  order:  Ankeny  v.  Fairview  filling 
Co.,  10  Or.  300. 

Affidavit  for  immediate  delivery  in  replevin  is  jurisdic- 
tional to  the  order:  State  v.  Bacon,  13  Or.  144. 

Such  aflidavit,  if  in  Justice's  Court,  should  be  indorsed  by 
justice,  and  not  by  plaintiff,  directing  the  officer,  but  if 
not  so  done,  the  error  is  not  fatal:  Id. 

Affidavit  for  continuance  should  state  the  facts  on  which 
belief  that  witness  can  be  had  at  the  next  term  is 
ibunded:  State  v.  O'Neil,  13  Or.  183. 


22  Affidavits. 

AflB.davits  (continued). 

Proof  of  service  of  personal  process  by  publication  may  be 
made  by  affidavit:  Garrison  v.  Chceney,  1  W.  T.  489. 

A  master  in  chancery  is  not  authorized  to  make  such  oath: 
Id. 

Whether  absence  of  venue  in  an  affidavit  sworn  to  before 
a  justice  of  the  peace  is  fatal,  quaere:  McCoy  v.  Ayres, 
2  W.  T.  203. 
Admissions.     See  Evidence;  Pleadings;  Summons. 
Agency.     See  Admiralty;  Common  Carriers. 

Principal  must  adopt  or  reject  acts  of  agent  as  an  entirety: 
Coleman  v.  Stark,  1  Or.  115. 

Deputy  or  agent  must  transact  business  in  name  of  prin- 
cipal: Dennison  v.  Story,  1  Or.  272. 

Wife  is  deemed  agent  of  her  husband  in  receiving  money 
from  sale  of  her  separate  property  under  foreclosure  of 
his  mortgage  thereon,  and  though  she  had  notice  of  the 
same,  she  is  not  estopped:  Fahie  v.  Pressey,  2  Or.  23. 

Not  sufficient  to  declare  in  a  deed  that  it  is  executed  for 
and  in  behalf  of  principal;  it  must  be  executed  in  the 
name  of  the  principal:  Eagle  Woolen  Mills  Co.  v. 
Monteith,  2  Or.  277. 

Principal  liable  for  injury  by  firing  gun  by  agent,  though 
done  not  as  directed:  Oliver  v.  N.  P.  T.  Co.,  o  Or.  84. 

Agent  alone  liable  where  he  abandons  his  principal's 
business  entirely;  but  not  when  he  docs  the  business, 
though  not  in  accordance  with  his  orders:  Id. 

Agent  liable  on  contract  unless  plaintiff  had  notice  of 
agency;  burden  is  on  agent  to  show  that  plaintiff  had 
such  notice:  McCall  v.  Elliott,  3  Or.  138. 

Agent  in  possession  of  land  for  principal  has  not  such 
possession  as  to  be  liable  for  rent  under  statute:  Stewart 
V.  Perkins,  3  Or.  508. 

Minor  son  as  agent  for  parent  in  contracting  debts:  Carney 
V.  Barrett,  4  Or.  171. 

Agent  of  railroad  company,  charged  with  the  duty  of 
locating  the  line  of  tlie  road,  cannot,  for  consideration 
moving  to  himself,  agree  on  selecting  particular  route, 
regardless  of  the  interest  of  his  principal:  Holladay  v. 
Davis,  5  Or.  40. 

Corporations  are  bound  l)y  the  simple  contracts  and  acts 
of  agents  in  their  ordinary  duties:  Fink  v.  Canyon 
Road  Co.,  5  Or.  301. 


Agency,  23 

Agency  (continued). 

President  of  railroad,  authorized  generally  as  financial 
agent,  has  no  power  to  execute  chattel  mortgage  on 
a  locomotive  under  corporate  seal:  Luse  v.  Isthmus 
Transit  R'y  Co.,  G  Or.  125. 

Agent  may  testify  in  what  capacity  and  for  whom  he  was 
acting,  whether  as  agent  for  one  or  another:  Bennett  v. 
N.  P.  Ex.  Co.,  12  Or.  49. 

Person  signing  his  name  to  note,  adding  simply  "  Pres.," 
or  "Sec,"  is  personally  bound:  Guthrie  v.  Imbrie,  12 
Or.  182. 

But  where  president  and  secretary  of  a  corporation  so  sign 
and  aflix  the  seal  bearing  the  company  name,  it  is  pre- 
sumed the  intention  is  to  bind  the  corporation:  Id. 

Between  the  parties  to  the  note,  where  there  is  uncertainty 
on  its  face,  semhle,  that  parol  evidence  is  admissible  to 
fix  liability  of  principal:  Id. 

Agent  buying  land  from  distant  principal,  without  disclos- 
ing better  oft'er  previously  received,  takes  advantage  of 
his  relation,  and  the  deed  will  be  set  aside  on  repay- 
ment of  price:  Savage  v.  Savage,  12  Or.  459. 

Agent  taking  mortgage  in  his  own  name  binds  principal 
by  his  default  in  a  suit  to  foreclose  a  prior  lien,  al- 
though subsequently  he  assigns  the  mortgage  to  his 
principal:  Watson  v.  Dundee  M.  &  T.  I.  Co.,  12  Or.  474, 

Existence  of  agent's  authority  is  a  question  of  fact;  what 
he  may  do  by  virtue  thereof  is  a  question  of  law: 
Glenn  v.  Savage,  14  Or.  567. 

The  question  whether  an  agent  is  duly  authorized  is  not 
a  question  for  the  jury:  Id. 

Master  cannot  act  as  agent  of  shipper  and  owner  of  vessel 
at  same  time:  Gove  v.  Moses,  1  W.  T.  7. 

But  may  act  as  agent  of  shipper  after  his  duty  as  master 
ceases:  Id.  — 

Wharfinger  to  whom  ship  delivers  goods,  with  instruc- 
tions not  to  pass  them  to  consignee  till  the  payment  of 
freightage,  is  agent  of  the  ship:  Williams  v.  Steamship 
Columbia,  1  W.  T.  95, 

Agent  selling  logs  for  principal,  permitting  purchasers  to 
scale  them,  instead  of  employing  official  scaler,  is  guilty 
of  negligence,  and  liable  to  principal  for  loss  by  incor- 
rect measurement:  Crawford  v.  Cockran,  2  W.  T.  117. 


24  Agency. 

Agency  (continued). 

Principal  knowing  of  supplemental  proceedings  against 
agent,  wherein  goods  of  principal  are  sought  to  be  held 
for  agent's  debt,  must  intervene,  or  he  cannot  complain 
if  loss  ensue:  Murne  v.  Schwabacher  Bros.  &  Co.,  2 
W.  T.  192. 
Aliens.  See  Indians;  Public  Lands;  Treaties. 
Alimony.     See  Divorce. 

Alteration  of  Instruments.     See  Bills  and  Notes;  Eras- 
ures. 

Adding  the  words  "  in  gold  coin  "  to  note  is  material  al- 
teration: Wills  V.  Wilson,  3  Or.  308. 

When  makers  liable  on  joint  note  so  altered;  notice;  rati- 
fication: Id. 

Alteration  of  note  by  stranger,  with  intent  to  cancel  the 
note,  raises  no  presumption  of  payment:  Whitlock  v. 
Manciet  and  Bigne,  10  Or.  166. 

Alteration  of  instrument  under  seal  after  delivery  has 
been  consummated  avoids  the  instrument:  Walla  Walla 
Co.  V.  Ping.  1  W.  T.  339. 

Where  a  penal  sum  is  not  in  bond  when  signed  by  sure- 
ties, and  is  subsequently  and  after  the  bond  passes  from 
their  control  inserted,  they  are  not  liable:  Id. 

They  are  not  estopped  from  denying  their  liability,  al- 
though the  bond  has  been  accepted  without  knowledge 
of  the  alteration :  Id. 

Alterations  in  deed  after  signed  and  sealed,  and  after  it 
passes  from  control  of  maker,  render  the  deed  void,  un- 
less maker  afterward  in  due  form  assents:  Id. 

Alterations  after  signing,  but  before  leaving  control  of 
grantor,  do  not  render  the  deed  void,  the  maker  being 
estopped:  Id. 

Authorities,  to  the  effect  that  alterations  in  a  sealed  instru- 
ment may  be  authorized  by  parol  to  be  altered,  re- 
viewed, and  shown  to  be  a  departure  from  the  ancient 
and  generally  accepted  rule  of  law:  Id. 
Amendments.  Sec  Judgments^  Pleadings;  Records;  Sum- 
mons. 
Animals.  See  Estrays;  Common  Carriers;  Fences;  Lost 
Property;  Trespass. 

Owner  of  domestic  animal  not  liable  for  injury  resulting 
from  its  vicious  disposition  unless  he  is  chargeable  with 
notice  of  its  disposition:  Dufcr  v.  Cully,  3  Or.  377. 


Answers  and  Defenses.  25 

Animals  (continued). 

Rule  does  not  apply,  however,  in  case  of  trespass  qunre 

clausnm  fregit:  Id. 
Taking  cattle  from  the  range,  branding  them,  and  return- 
ing them,  apparently  in  good  faith,  believing  them  with- 
out owner,  raises  no  presumption  of  criminal  intent: 
State  V.  Swayze,  11  Or.  357. 
Natural  marks  on  cattle,  though  serving  to  identify  them, 
are  not  marks  of  ownership:  Id. 
Answers   and  Defenses.      See  Pleadings;    Recoupment; 
Set-offs  and  Counterclaims. 

1.  Denials. 

2.  In  General. 

3.  In  Particular  Cases. 
1.  Denials. 

Specific  denial  of  all  allegations  in  a  complaint  denies 

right  of  action:  Bailey  v.  Warren,  1  Or.  357. 
What  is  sufficient  denial  of  information  and  belief:   Rob- 
bins  v.  P>aker,  2  Or.  52;   Sherman  v.  Osborn,  8  Or.  66; 

Wilson  V.  Allen  and  Lewis,  11  Or.  154. 
When   denial  of  corporate  existence  is  abatement,  and 

when  bar:  Oregon  Central  R.  R.  Co.  v.  Wait,  3  Or.  91; 

Oregon  Central  R.  R.  Co.  v.  Scoggin,  3  Or.  161. 
Denial  that  plaintitf  corporation  is  duly  organized  raises 

no  issue:  Oregon  Central  R.  R.  Co.  v.  Scoggin,  3  Or.  161. 
Denial  that  property  is  of  the  exact  value  alleged  is  an 

admission  of  any  less  value:    Scovill  v.  Barney,  4  Or. 

288. 
Conjunctive  allegation  must  be  denied  disjunctively:  Id. 
Allegation  that  D.  made,  executed,  and  delivered  note,  not 

put  in  issue  by  denying  that  he  delivered  it:  Cogswell 

V.  Ilayden,  5  Or.  22. 
Denial  that  it  was  transferred  "  for  value  received,"  and 

denial  of  indebtedness,  raise  no  issue:   Id.  ^^ 

No  issues  can  be  raised  by  conjunctive  and  literal  de- 
nials:  Moser  v.  Jenkins,  5  Or.  447;  City  of  Seattle  v. 

Buzby,  2  W.  T.  25. 
Denial  of  work  performed,  in  an  answer  pleading  a  special 

defense    which    admits    it  was  done,  raises   no  issue: 

Lung  Louis  &  Co.  v.  Brown,  7  Or.  326. 
A  denial  of  knowledge  where  information  can  be  had  by 

inspection   of  records  is  sham:    Wilson  v.  Allen  and 

Lewis,  11  Or.  154. 


26  Answers  and  Defenses. 

Answers  and  Defenses  (continued). 

Denial  of  reasonableness  of  attorney's  fee,  alleged  in  ac- 
tion on  a  note,  raises  an  issue  to  be  tried:  Cowles  v. 
Doble,  11  Or.  474. 

Denial  in  manner  and  form  admits  the  allegation:  City 
of  Seattle  v.  Buzby,  2  W.  T.  25. 

Allegation  that  "  each  and  every  of  four  separate  causes 
of  action   set  forth  in  the   complaint  did   not  accrue 
within  six  years,"  contains   a  negative  pregnant,  and 
need  not  be  denied:  Gammon  v.  Dyke,  2  W.  T.  26(3. 
2.   In  General. 

In  an  answer  in  confession  and  avoidance,  new  matter 
must  be  so  stated  as  to  amount  to  complete  bar:  Good- 
win V.  Barnhart,  1  Or.  215. 

In  abatement  must  be  pleaded  separately,  and  disposed  of 
before  answer  to  merits:  Ilopwood  v.  Patterson,  2  Or.  49. 

Defense  of  pendency  of  former  suit  for  same  cause  must 
show  suit  still  pending:  Id. 

A  supplemental  answer  in  the  nature  of  a  plea  2'>uis  dar- 
rein cnntinunnce  does  not  waive  former  pleas,  usually: 
Hamlin  v.  Chapman,  2  Or.  91. 

Amendment  of  Code,  allowing  equitable  defenses  in  ac- 
tions at  law,  is  a  radical  change:  Delav  v.  Chapman,  2 
Or.  242. 

Pleading  former  suit  as  a  bar  must  show  facts  as  to  what 
matter  was  therein  determined:  Ileatherly  v.  Iladley, 
2  Or.  2G9. 

Evidence  must  not  be  set  up  in  or  made  part  of  answer: 
White  v.  Allen,  8  Or.  103. 

Essential  to  equitable  defense  that  defendant  has  no  legal 
defense:  Id. 

Abatement  pleaded  with  matter  in  bar  will  be  stricken 
out  on  motion:  Oregon  Central  R.  R.  Co.  y.  Scoggin,  3 
Or.  101. 

Not  all  facts  constituting  defense  will  afibrd  equitable 
aflirrnative  relief:  Kennard  v.  Sax,  3  Or.  263. 

Answer  must  not  be  contradictory;  admissions  in  such 
answer  are  binding:  Foren  v.  Dealey,  4  Or.  92. 

Answer  uhicli  puts  in  issue  the  ultimate  facts  is  sufficient: 
Id. 

Must  be  false  and  pleaded  in  bad  faith  to  be  stricken  out 
as  sham:  Id. 


Answers  and  Defenses.  27 

Answers  and  Defenses  (continued). 

Defense  that  plaintiff  is  not  the  real  party  in  interest 
must  be  pleaded  in  abatement,  and  otherwise  cannot  be 
taken  advantage  of  after  going  to  trial  on  the  merits: 
Derkeny  v.  Belfils,  4  Or.  258. 

When  an  answer  in  an  action  at  law  sets  up  a  complete 
legal  defense,  a  cross-bill  in  equity  cannot  be  fded  un- 
der section  377  of  the  Code  (sec.  381,  Hill's  A.  L.): 
Dolph  V.  Barney,  5  Or.  193;  Scheland  v.  Erpelding,  6 
Or.  258. 

Doctrine  of  parol  demurrer  is  not  recognized  in  Oregon: 
English  V.  Savage,  5  Or.  518. 

Where  a  defendant  has  no  plain,  adequate,  and  complete 
remedy  at  law,  an  equitable  defense  may  be  pleaded  by 
cross-bill,  although  the  facts  so  pleaded  constitute  but  a 
partial  defense  to  the  action  at  law:  Hatcher  v.  Briggs, 
6  Or.  31. 

Failure  to  plead  equitable  defense  by  cross-bill  does  not 
preclude  filing  original  bill:  Hill  v.  Cooper,  G  Or.  181. 

Estoppel,  as  a  defense,  must  be  pleaded  to  be  available: 
Rugh  v.  Ottenheimer,  G  Or.  231. 

Manner  of  pleading  estoppel  as  a  defense:  Page  v.  Smith, 
13  Or.  410. 

Irregularity  in  counterclaim  not  demurred  to,  unless 
jurisdictional,  is  waived  by  reply:  Scheland  v.  Erpeld- 
ing, 6  Or.  258. 

Inconsistent  defenses  may  be  pleaded  in  same  answer  in 
real  actions:  Moore  v.  Willamette  T.  &  L.  Co.,  7  Or.  355. 

Pleading  which  is  but  a  repetition  of  former  one  adjudged 
insufficient  is  frivolous:  Farris  v.  Hayes,  9  Or.  81. 

Informal  statement  of  facts  in  answer  cured  by  verdict: 
Houghton  and  Palmer  v.  Beck,  9  Or.  325;  Andros  v. 
Childers,  14  Or.  447. 

Where  one  pleads  jointly  with  other  defendants  facts^on- 
stituting  defense  for  himself  alone,  objection  must  be 
made  before  trial  that  he  should  have  answT^red  sepa- 
rately: Brown  &  Co.  v.  Rathburn,  10  Or.  158. 

Matter  not  constituting  complete  defense  may  be  pleaded 
in  mitigation  of  damages,  but  nmst  be  pleaded  as  a 
partial  defense:  Webb  v.  Nickerson,  11  Or.  382. 

On  filing  an  amended  answer,  a  former  one  and  all  mo- 
tions and  demurrers  relating  thereto  are  abandoned, 


28  Answers  and  Defenses. 

Answers  and  Defenses  (continued). 

and  cease  to  be  a  part  of  the  record  reviewable  on  ap- 
peal: Wells  V.  Applegate,  12  Or.  208. 
Answer  must  set  forth  defense  with  the  same  precision 
and  accuracy  required  in  a  complaint:  Meeker  v.  Wren, 

1  W.  T.  73. 

Matters  of  defense  must  be  stated  with  particularity  and 
definiteness:  Roeder,  Peabodv,  &  Co.  v.  Brown,  1  W.  T. 
112. 

Answer  admitting  allegations  of  complaint  with  qualifica- 
tions, the  plaintiff  is  not  relieved  from  proving  the 
allegations  qualified  by  the  answer:  Breemcr  v.  Burgess, 

2  W.  T.  290. 

Afiirmative  matter  in  answer  which  in  effect  amounts  to 
but  a  denial  of  complaint,  adds  nothing  to  the  issue 
made  by  the  denials:  P.  S.  I.  Co.  v.  Worthington,  2 
W.  T.  482. 

Defendant  denying  contract  alleged,  it  is  irrelevant  to  set 
forth  the  contract  he  claims  he  did  make:  Id. 
3.  In  Particular  Cases. 

Defense  of  the  statute  of  limitations  must  be  set  up  as 
new  matter,  unless  the  fact  appears  on  the  face  of  the 
complaint:  Steamer  Senorita  v.  Simonds,  1  Or.  274. 

Answer  held  not  sufficient  in  an  action  on  forthcoming 
bond:  Norton  v.  Winter,  1  Or.  97. 

Answer  that  the  suit  did  not  accrue  within  six  years  is 
sufficient  on  demurrer  where  the  period  of  statutory 
limitation  is  five  years:   Baldro  v.  Tolmie,  1  Or.  170. 

Answer  to  petition  for  mandamus  may  not  raise  issues  of 
ultimate  right  to  office:  Warner  v.  Myers,  ?>  Or.  218. 

Coverture,  in  suit  against  wife  alone,  when  bar  and  when 
abatement:  Kennard  v.  Sax,  3  Or.  263. 

In  action  of  ejectment,  defendant  claiming  undivided  in- 
terest must  specify  what  interest  he  claims:  Pease  v. 
Hannah,  3  Or.  301. 

In  action  on  general  warranty  in  deed,  defendant  cannot 
set  up  that  th(^  warranty  was  intended  to  apply  to  jiart 
of  prcmisos:  Taggart  v.  Risley,  3  Or.  300. 

In  action  for  wages,  defense  that  plaintiff  did  not  work 
diligently  must  be  pleaded:   Albee  v.  Albee,  3  Or.  321, 

What  is  a  sufficient  plea  of  the  statute  of  limitations  of 
another  state:  Crawford  v.  Roberts,  8  Or.  324. 


Answers  and  Defenses.  29 

Answers  and  Defenses  (continued). 

Payment  cannot  be  pleaded  as  a  counterclaim,  but  may- 
be proved  under  a  general  allegation  of  payment: 
Hendrix  v.  Gore,  8  Or.  406. 

Lack  of  funds  to  repair  is  matter  of  defense,  in  action 
against  city  officers  for  injury  by  defective  bridge: 
Rankin  v.  Buckman,  9  Or.  253.  * 

Final  settlement  between  partners  as  a  defense  to  bill 
for  an  accounting  must  be  pleaded:  Gleason  v.  Van 
Aernam,  9  Or.  343. 

Right  of  defendant  in  foreclosure  suit  to  answer  co- 
defendants:  Ladd  and  Tilton  v.  Mason,  10  Or.  308. 

An  unexecuted  agreement  to  arbitrate  is  no  defense  to  an 
action  on  a  contract:  Savage  v.  Glenn,  10  Or.  440. 

Equitable  rights,  estates,  or  estoppel  cannot  be  pleaded  as 
defenses  in  action  of  ejectment:  Newby  v.  Rowland,  11 
Or.  133. 

In  an  action  against  a  sherilff  for  conversion,  answer 
justifying  under  seizure  on  attachment  must  allege 
that  the  attachment  debtor  was  the  owner  of  the  prop- 
erty: Krewson  v.  Purdom,  11  Or.  2GG. 

Answer  in  justification  in  action  for  conversion  in  seizing 
of  property  by  Indian  agent  must  allege  that  person 
in  possession  was  a  white  person  or  Indian:  Webb  v. 
Nickerson,  11  Or.  382. 

In  answer  alleging  deceit,  the  pleader  must  show  wherein 
the  representations  were  false, —  must  allege  facts,  not 
conclusions:  Specht  v.  Allen,  12  Or.  117;  Misner  v. 
Knapp,  13  Or.  135. 

In  all  actions  in  the  nature  of  trespass,  justification  as  a 
defense  must  be  specially  pleaded:  Gee  v.  Culver,  12 
Or.  228;  Konigsberger  v.  Harvey,  12  Or.  286. 

But  aflirmative  matter  not  amounting  to  justification 
may  be  joined  to  a  denial,  and  need  not  be  pleaded 
separately:  Konigsberger  v.  Harvey,  12  Or.  286.  ^^ 

In  divorce,  admission  of  the  charge,  in  centain  cases 
under  the  statute,  to  show  in  bar  that  the  suit  has  not 
been  commenced  within  a  year,  must  be  by  answer,  and 
not  merely  by  demurrer:  Rice  v.  Rice,  13  Or.  337. 

In  conversion,  plea  of  title  in  a.  third  person  is  not  new 
matter:  Krewson  &  Co.  Purdom,  13  Or.  563. 


30  Answers  and  Defenses. 

Answers  and  Defenses  (continued). 

But  quserc,  whether  such  fact  can  be  proved  under  mere 
denial  of  plaintiff's  title:  Id. 

In  replevin  a  claim  of  possession  by  virtue  of  a  special 
property  must  be  pleaded  as  new  matter,  and  cannot  be 
shown  under  denial  of  plaintiff's  right:  Guille  v.  Wong 
Fook,  13  Or.  577. 

Semhle,  that  under  general  issue  plaintiff  may  prove  ab- 
solute ownership  in  liimself  or  third  person:  Id. 

Statute  of  another  state  relied  on  as  a  defense  must  be 
pleaded:  Balfour  v.  Davis,  14  Or.  47. 

Answer  charging  fraud  and  misrepresentation  as  a  de- 
fense in  a  suit  on  a  contract  of  guaranty  under  seal, 
held  insufficient  in  law:  Marx  v.  Schwartz,  14  Or.  177. 

Answer  setting  up  conditional  contract  of  sale  unful- 
filled, as  defense  on  promissory  note  for  purchase  price, 
must  show  an  offer  to  reconvey:  Kenworthy  v.  Merritt, 
2  W.  T.  155. 
Appeal  and  Error.  See  Pleadings;  Practice j  Review, 
Writ  of. 

1.  Nature  and  Right. 

2.  Notice  of  Appeal. 

3.  Precipe  and  Assignmen-j  of  Errors. 

4.  Notice  of  Error. 

5.  Bill  of  Exceptions  and  Statement. 

6.  Undertaking. 

7.  Transcript  and  Record. 

8.  Effect. 

9.  Dismissal. 

10.  Practice. 

11.  Errors  and  Questions  Considered. 
1.  Nature  and  Right. 

Lies  from  dccieion  of  commissioners  to  District  Court  on 
contest  al)out  a  ferry:  Carothers  v.  Wheeler,  1  Or.  194. 

The  granting  or  refusing  motion  for  a  new  trial  is  not 
a  final  order  from  which  appeal  or  writ  of  error  lies: 
Bowen  v.  State,  1  Or.  270;  State  v.  Fitzhugh,  2  Or.  227; 
State  V.  Wilson,  6  Or.  428;  Ilallock  v.  City  of  Portland, 
8  Or.  29;  State  v." McDonald,  8  Or.  113;  State  v.  Drake, 
11  Or.  390;  State  v.  Mackey,  12  Or.  154;  Kearney  v. 
Snodgrass,  12  Or.  311;  State  v.  Becker,  12  Or.  318; 
Tucker  v.  Flouring  Mills  Co.,  13  Or.  28;  Wassissimi  v. 


Appeal  and  -^Error,  31 

Appeal  and  Error  (continued). 

Territory,  1  W.  T.  6;  Smith  v.  United  States,  1  W.  T. 

262;  McCormick  v.  W.  W.  &  C.  R.  R.  R.  Co.,  1  W.  T. 

512;  Jones  v.  Wiley,  1  W.  T.  G03;  Page  v.  Rodney,  2 

W.  T.  4G1. 
In  absence  of  fixed  time  to  take  appeals  from  land-oflQce 

to  general  land-office  of  United  States,  party  entitled  to 

reasonable  time  and  no  more:  Moore  v.  Fields,  1  Or.  317. 
Lies  in  all  cases  from  final  decisions  of  Justice's  Courts 

and  County  Courts:  Blanchard  v.  Bennett,  1  Or.  328. 
Appeal  and  review  are  concurrent  remedies:  Id.;  Shirott 

V.  Phillippi,  3  Or.  484;  contra,  Evans  v.  Christian,  4  Or. 

375;  Sellers  v.  City  of  Corvallis,  5  Or.  273;  Ramsey  v. 

Pettengill,  14  Or.  207;  Summers  v.  Harrington,  14  Or. 

480. 
But  are  concurrent  remedies  to  vacate  a  void  judgment. 

rendered  by  a  justice  of  the  peace:   Prickett  v.  Cleek, 

13  Or.  415.' 
From  County  Court,  no  other  issues  than  those  heard  be- 
low can  be  tried:  Cain  v.  Harden,  1  Or.  3G0. 
Does  not  lie  from  judgment  by  default:  Ryan  v.  Harris, 

2  Or.  175. 
Nor  from  justice's  judgment  less  than  twenty  dollars, 

though  the  amount  in  controversy  be  greater:  Stoll  v. 

Iloback,  2  Or.  225. 
Nor  from  order  of  Circuit  Court  refusing  leave  to  bring 

action  against  a  private  corporation:   State  v.  Oregon 

Central  R.  R.  Co.,  2  Or.  255. 
Order  partially  removing  cause  to  United  States  court 

not  reviewable:  Fields  v.  Lamb,  2  Or.  340. 
Such  order  does  not  affect  a  substantial  right,  or  prevent 

judgment  within  section  525  of  the  Code   (sec.    535, 

Hill's  A.  L.):  Id. 
Does  not  lie  to  Circuit  Court  from  decision  of  register  of 

state  lands,  La  Grande  district:  Anderson  v.  Laughery, 

8  Or.  277. 
No  appeal  from  judgment  for  want  of  an  answer:   Fass- 

man  v.  Baumgartner,  3  Or.  409;   Smith  v.  Ellendale 

Mill  Co.,  4  Or.  70;  Trullenger  v.  Todd,  5  Or.  36. 
Order  assigning  custody  of  minor  children  in  divorce  case 

is  appealable:   Pittman  v.  Pittman,  3  Or.  472. 
Appeal  involves  trial  of  fact  and  law;  review,  questions 

of  law  only:  Schirott  v.  Phillippi,  3  Or.  484. 


32  Appeal  and  Error. 

Appeal  and  Error  (continued). 

After  expiration  of  time  to  appeal  from  a  justice's  judg- 
ment, the  right  to  review  still  exists:  Id.;  Evans  v. 
Christian,  4  Or.  375;  Sellers  v.  City  of  Corvallis,  5  Or. 
273;  but  this  is  not  the  rule  as  to  judgments  of  the 
County  Court:  Broback  v.  HutF,  11  Or.  395;  and  is 
expressly  overruled  as  to  justice's  judgments:  Ramsey 
V.  Pettengill,  14  Or.  207;  Summers  v.  Harrington,  14 
Or.  480. 

Judgment  for  want  of  answer,  wben  rendered  without 
jurisdiction,  maybe  appealed  from:  Smith  v.  Ellendale 
Mill  Co.  4  Or.  70;  Trullenger  v.  Todd,  5  Or.  36. 

Decision  of  Circuit  Court  as  to  costs  may  be  reviewed  on 
appeal:  Cross  v.  Chichester,  4  Or.  114. 

Party  cannot  accept  judgment,  and  enter  satisfaction,  and 
then  appeal  from  it:  Moore  v.  Floyd,  4  Or.  260;  Lyons 
V.  Bain,  1  W.  T.  482. 

Purchaser  at  void  administrator's  sale  has  no  right  of  ap- 
peal from  order  of  sale  or  confirmation:  Levy  v.  Riley, 

4  Or.  392. 

A  judgment,  although  void,  may  be  appealed  from:  Trul- 
lenger V.  Todd,  5  Or.  36. 

Order,  to  be  appealable,  must  not  only  affect  a  substantial 
right,  but  terminate  the  action:  State  v.  Brown,  5  Or. 
119. 

Lies  from  judgment  of  city  recorder  of  Corvallis  to  Circuit 
Court:  Sellers  v.  City  of  Corvallis,  5  Or.  273;  City  of 
Corvallis  v.  Stock,  12  Or.  391. 

Term  appointed  by  order  of  Supreme  Court  is  a  regular 
term  within  the  statute  of  appeals:  Moore  v.  Pack  wood, 

5  Or.  325. 

From  city  council  of  Portland,  in  laying  out  streets,  to 
Circuit  Court,  must  be  taken  from  the  whole  judgment, 
and  the  trial  is  de  novo:  City  of  Portland  v.  Kannu,  5 
Or.  362. 

Appeal,  mandamus,  or  writ  of  review  are  the  proper  means 
by  which  Circuit  Court  exercises  supervisory  control 
over  County  Covirt,  and  not  injunction:  Road  Co.  v. 
Douglas  Co.,  5  Or.  373. 

Docs  not  lie  from  justice's  judgment  rendered  after  strik- 
ing out  answer,  defendant  refusing  to  plead:  Long  v. 
Sharp,  5  Or.  438. 


Appeal  and  Error.  33 

Appeal  and  Error  (continued). 

On  death  of  party,  his  representatives  cannot  appeal  until 

they  luive  obtained  an  order  allowing  continuance  in 

their  names:  Dick  v.  Kendall,  6  Or.  166. 
Between  time  of  death  and  allowance  of  such  order,  suit 

IS  suspended,  and  such  period  is  not  deemed  any  part 

of  the  time  for  taking  appeal:  Id. 
Party  may  voluntarily  pay  the  judgment  and  then  appeal: 

Edwards  v.  Perkins,  7  Or.  149. 
Abandonment  of  appeal,  after  serving  notice  thereof,  does 

not  preclude  appellant  from  appealing  again  within  the 

time  limited  for  taking  appeals:  Holladay  v.  Elliott  7 

Or.  483. 

Appeal  does  not  lie  from  order  made  by  County  Court  in 
transacting  county  business:  Mountain*  v.  Multnomah 
County,  8  Or.  470. 
Does  not  lie  from  judgment  of  city  recorder  of  La  Payette 
when  rendered  in  a  city  case:  Town  of  La  Fayette  v 
Clark,  9  Or.  225. 

Final  order  in  administration  proceedings  having  been 
duly  entered,  cannot,  by  order  at  subsequent  term,  be  so 
amended  that  appeal  will  lie  from  the  latter  order  after 
time  for  appealing  from  the  original  order  has  expired: 
Harvey's  Heirs  v.  Wait,  10  Or.  117;  but  see  Lee  v.  Im- 
brie,  13  Or.  510. 

Where  the  parts  of  a  decree  are  severable,  a  party  ma^ 
accept  the  portion  favorable  to  him,  and  issue  execu- 
tion thereon,  and  appeal  from  the  remainder:  Inverarity 
V.  Stowell,  10  Or.  261. 

Appeal  lies  from  order  of  confirmation  of  sheriff's  sale: 
Dell  V.  Estes  and  Carter,  10  Or.  359. 

To  review  a  judgment  awarding  costs,  appeal  from  the 
judgment  is  proper;  but  where  it  is  sought  to  review 
erroneous  taxation  of  costs,  appeal  should  be  taken^om 
the  determination  settling  the  amount  thereof:  Burt  v. 
Ambrose,  11  Or.  26. 

Lies  only  when  the  controversy  as  to  all  parties  to  the 
action  has  been  finally  determined:  Watkins  v.  Mason 
11  Or.  72.  ' 

Lies  from  order  dissolving  or  refusing  to  dissolve  attach- 
ment: Sheppard  v.  Yocum,  11  Or.  234;  Suffern  v. 
Chisholm,  1  W.  T.  486. 

Ou.  Dig.— 3 


34  Appeal  and  Error. 

Appeal  and  Error  (continued). 

Does  not  lie  from  an  order  of  the  Circuit  Court  on  petition 
for  the  removal  of  an  assignee  of  an  insolvent:  In  re 
Goldsmith,  12  Or.  414. 

From  Justices'  Court  is  means  of  obtaining  right  of  trial 
by  jury,  and  practice  should  be  liberal:  Hosford  v. 
Logus,  13  Or.  130. 

Appeal,  and  not  injunction,  is  the  remedy  to  prevent  en- 
forcing an  erroneous  judgment  for  costs:  Nicklin  v. 
Hobin,  13  Or.  406. 

Justice's  Code,  as  to  appeals,  is  complete  in  itself;  and 
section  527  of  the  Civil  Code  (sec.  537,  Hill's  A.  L.) 
does  not  apply  to  appeals  from  Justices'  Courts:  Odell 
V.  Gotfrey,  13  Or.  466. 

Circuit  Court  acquires  no  jurisdiction  on  appeal  unless 
statute  is  strictly  pursued:  Steel  v.  Rees,  13  Or.  428. 

Where  a  long  time  after  a  final  order  is  entered  it  is  cor- 
rected by  nunc  pro  tunc  order,  it  seems  right  of  appeal 
runs  from  the  date  of  the  latter  order:  Lee  v.  Imbrie, 
13  Or.  510. 

Appeal  and  review  are  concurrent  remedies  from  a  void 
judgment  in  default:  Prickett  v.  Cleek,  13  Or.  415. 

On  appeal  in  a  forcible  entry  and  detainer  case,  the  un- 
dertaking for  twice  the  rental  value  of  the  premises  is 
a  prerequisite  on  the  part  of  the  defendant  appealing: 
Danvers  v.  Durkin,  14  Or.  37. 

Decree  in  partition  which  determines  the  rights  of  the 
parties  and  leaves  nothing  to  be  done  but  to  carry  it 
into  effect  by  appointment  of  referees,  etc.,  is  final,  and 
appeal  lies  therefrom:  Walker  v.  Goldsmith,  14  Or.  125 

Lies  from  an  order  settling  and  allowing  receiver's  fees: 
Martin  v.  Martin,  14  Or.  165. 

Appeal  from  such  order  is  a  special  proceeding  not  cov- 
ered by  the  general  statute  relating  to  appeals,  and  may 
be  taken  under  rule  14  of  Supreme  Court:  Id. 

Decree  of  divorce  is  not  subject  to  review,  though  there 
be  proceedings  in  the  suit  that  may  be  reviewed:  Madi- 
son V.  Madison,  1  W.  T.  60;  contra,  Tierney  v.  Tierney, 
1  W.  T.  568. 

Appeal  lies  to  Supreme  Court  of  Washington  Territory 
only  in  the  cases  specified  in  section  356,  page  199, 
Laws  of  1854:  Puget  Sound  Agr.  Co.  v.  Pierce  Co.,  1 
W.  T.  76. 


Appeal  and  Error.  35 

Appeal  and  Error  (continued). 

The  status  of  the  appellant  in  the  Supreme  Court  is  de- 
rived  from  the  order  of  the  court  below:  Id. 

Provisions  of  the  statute  which  are  preliminary  in  their 
character  must  be  complied  with,  to  confer  jurisdiction 
on  appeal:  Id. 

No  appeal  lies  from  the  action  of  the  board  of  county 
commissioners  in  locating  county  roads,  except  on  the 
single  question  of  damages:  King  County  v.  Neely,  1 
W.  T.  241. 

How  appeals  from  board  of  county  commissioners  should 
be  taken:  Id. 

Whether  appearance  of  the  opposite  party,  on  appeal 
from  the  board  of  commissioners,  without  making  ob- 
jection, cures  irregularities  in  taking  the  appeal:  Id. 

Appeal  is  abolished  by  section  445  of  the  Practice  Act  of 
1873,  which  is  confirmed  by  act  of  Congress,  1874, 
though  contrary  to  the  Organic  Act:  Mann  v.  Young,  1 
W.  T.  454. 

By  accepting  the  fruits  of  a  decree,  party  is  estopped  from 
appealing:  Lyons  v.  Bain,  1  W.  T.  482. 

An  order  dissolving  an  attachment  is  a  final  order  from 
which  appeal  or  writ  of  error  lies:  SuflFern  v.  Chisholm, 
1  W.  T.  486. 

"Where  such  order  is  made  by  the  judge  at  chambers  and 
not  by  the  court,  the  order  is  void,  and  cannot  be  re- 
viewed by  the  Supreme  Court:  Id. 

When  notice  of  appeal  is  filed  with  the  justice  of  the 
peace  and  copy  served,  appeal  is  taken;  but  to  stay 
proceedings  it  is  necessary  to  file  a  bond  and  make 
entry  of  the  allowance  of  appeal  in  the  justice's  docket: 
Seattle  Coal  and  Trans.  Co.  v.  Lewis,  1  W.  T.  488. 

Right  of  appeal  and  the  mode  of  taking  the  same,  under 
the  various  codes  of  Washington  Territory:  Garri^n 
v.  Cheeney,  1  W.  T.  489. 

Legislature  cannot  provide  for  appeal  from  an  order  of 
the  District  Court  granting  or  refusing  new  trial:  Mc- 
Cormick  v.  Walla  Walla  &  C.  R.  R.  R.  Co.,  1  W.  T. 
512. 

The  legislature  must  provide  a  mode  in  which  the  appel- 
late power  of  the  Supreme  Court  is  to  be  exercised; 
McGowun  v.  Petit,  1  W.  T.  514. 


36  Appeal  and  Ereob. 

Appeal  and  Error  (continued). 

Divorce  act  of  1863,  forbidding  the  reversal  of  any  final 
order  of  the  District  Court  divorcing  parties,  is  to  such 
extent  in  violation  of  the  Organic  Act  and  void:  Tierney 
V.  Tierney,  1  W.  T.  568. 

Order  awarding  custody  and  fixing  the  allowance  for 
support  of  a  child,  in  divorce  proceedings,  is  merely 
interlocutory,  and  not  subject  to  review:  Id. 

Appeal  in  equity  allowed  by  the  Organic  Act  is  the  right 
to  a  new  trial  upon  the  pleadings  and  evidence  that 
were  before  the  lower  court:  Coleman  v.  Yesler,  1 
W.  T.  591. 

Legislature  cannot  abridge  such  right,  but  may  prescribe 
a  course  to  be  pursued  by  the  party  availing  himself  of 
the  right  given:  Id. 

Legislative  enactment  requiring  party  to  indicate  what 
part  of  the  proceedings  he  appeals  from,  and  to  define 
such  part,  and  to  make  specific  statement  of  what  is 
erroneous,  does  not  in  any  wise  abridge  the  right  to  ap- 
peal, nor  destroy  the  distinction  between  an  appeal  and 
a  writ  of  error:  Id. 

Such  statement  and  specification  of  error  is  not  based 
upon  the  idea  that  the  decision  of  the  lower  court  is 
left  standing,  but  is  simply  a  regulation  for  convenience 
in  procedure:  Id. 

Where  the  findings  of  fact  made  by  the  trial  judge  are 
not  as  broad  as  the  issues,  or  are  insuflicient,  remedy 
is  by  motion  for  further  findings,  and  not  by  appeal: 
Eakin  v.  McCraith,  2  W.  T.  112. 

Under  section  453  of  the  Code,  a  party  to  a  judgment  has 
full  six  months  within  which  to  decide  whether  he  will 
appeal:  Crawford  and  Harrington  v.  Haller,  2  W.  T, 
161. 

Construction  of  the  act  of  1883  respecting  appeals;  the 
act  is  cumulative  and  complete,  and  does  not  repeal 
sections  458,  459,  and  460  of  the  Code  of  1881;  Breemer 
V.  Burgess,  2  W.  T.  290. 

Appeal  does  not  lie  from  an  order  granting  or  modifying 
a  temporary  injunction:  N.  P.  R.  R.  Co.  v.  W.  F.  &  Co., 
2  W.  T.  303. 

Appeals  can  only  be  taken  from  final  judgments,  orders, 
and  decisions:  McCormick  v.  W.  W.  &  C.  R.  R.  R.  Co., 


Appeal  and  Error.  37 

Appeal  and  Error  (continued). 

1  W.  T.  512;  N.  P.  R.  R.  Co.  v.  W.  F.  &  Co.,  2  W.  T. 
303;  Jennings  v.  Bartels,  2  W.  T.  306;  Conway  v.  U.  S. 
of  America,  2  W.  T.  33G. 

After  giving  notice  of  appeal,  and  entry  thereof  on  the 
journal,  under  the  act  of  1883,  which  has  the  effect  of 
transferring  the  cause,  an  appeal  cannot  be  taken  under 
the  Code  of  1881,  because  no  judgment  remains  in  the 
District  Court:  Conway  v.  U.  S.  of  America,  2  W.  T. 
336. 

In  the  absence  of  joinder  of  a  co-party  in  the  appeal,  or 
his  appearance,  or  notice  served  upon  him,  the  Supreme 
Court  is  not  invested  with  jurisdiction  of  the  cause: 
Parker  v.  Denny,  2  W.  T.  360. 

If  case  be  dismissed  for  want  of  transcript,  another  writ 
of  error  may  be  prosecuted  within  the  time  allowed  by 
law:  Roberts  and  Iloyt  v.  Tucker,  1  W.  T.  179. 

Ruling  of  District  Court  on  a  motion  to  vacate  final  judg- 
ment is  not  itself  a  final  judgment  reviewable  on  writ 
of  error:  Hancock  v.  Stewart,  1  W.  T.  323. 

After  expiration  of  the  time  for  taking  writ  of  error,  juris- 
diction cannot  be  had  in  the  Supreme  Court,  even  with 
consent  of  tlic  parties:  Stark  v.  Jenkins,  1  W.  T.  421. 

Manner  of  transferring  cases  to  the  Supreme  Court  is  en- 
tirely statutory:  Lytle  v.  Territory,  1  W.  T.  435. 

Except  in  case  provided  for  in  section  445  of  the  Practice 
Act  of  1873.  a  final  determination  of  the  District  Court 
must  be  taken  to  the  Supreme  Court  by  writ  of  error: 
Mann  v.  Young,  1  W.  T.  454. 

Repeal  of  Code  of  1871,  and  adoption  of  writ  of  error 
under  the  statutes  of  1873,  operates  to  require  proceed- 
ings, in  cases  where  time  for  appeal  had  not  expired 
before  the  adoption  of  the  Code  of  1875,  to  be  in  accord- 
ance with  the  latter  Code:  Garrison  v.  Cheeney,  1  \\^T 
489. 

Writ  of  error  need  only  be  prosecuted  in  the  name  of  the 
party  aggrieved  by  the  decision  of  the  lower  court:  Id. 

Under  the  provisions  of  the  Code  of  1881,  an  action  at 
law  cannot  be  reviewed  in  the  Supreme  Court  by  ap- 
peal, but  must  be  brought  by  writ  of  error:  Wilson  v. 
Wald  and  Campbell,  2  W.  T.  376. 


38  Appeal  and  Error. 

Appeal  and  Error  (continued). 
2.  Notice  of  Appeal. 

a.  The  Notice. 

Notice,  and  certificate  of  attorney  therein  to  the  existence 
of  error,  not  amendable:  Dolph  v.  Nickum,  2  Or.  202. 

Where  notice  of  appeal  from  Justice's  Court  specified 
jurl^ment  for  $57.75,  and  transcript  $52.50,  appeal  dis- 
missed: Chipman  v.  Bronson,  3  Or.  320. 

Need  not  specify  errors  relied  on  in  criminal  case;  rule 
adopted  requiring  statement  on  demand:  State  v.  Ellis, 
3  Or.  497. 

Certificate  of  attorney  in  notice  of  appeal  must  not  only 
allege  errror,  but  state  in  what  particulars  the  judgment 
is  erroneous:  Fulton  v.  Earhart,  4  Or.  Gl. 

Notice  of  appeal  from  a  decree  need  not  specify  grounds  of 
error:  Lewis  v.  Lewis,  4  Or.  209. 

Requisites  of  notice  of  appeal:  Id.;  Christian  v.  Evans, 
5  Or.  253;  Oliver  v.  Harvey,  5  Or.  360;  Weiss  v. 
Jackson  County,  8  Or.  529;  Luse  v.  Luse,  9  Or.  149; 
Noppach  v.  Jordan,  13  Or.  246. 

Parties  cannot  waive  notice  so  as  to  give  appellate  court 
jurisdiction:  Oliver  v.  ILirvey,  5  Or.  360;  Wolf  v. 
Smith,  6  Or.  73. 

No  notice  appearing  in  the  transcript,  the  court  has  no 
jurisdiction  notwithstanding  parties  appear:  Wolf  v. 
Smith,  6  Or.  73. 

No  error  not  specified  in  notice  considered,  except  lack  of 
jurisdiction  appearing  in  the  record:  McKay  v.  Free- 
man, 6  Or.  449;  State  v.  McKinnon,  8  Or.  487;  Weiss- 
man  V.  Russell,  10  Or.  73. 

"  Tliat  the  court  rendered  judgment  on  the  verdict."  is 
a  sudicient  specification  of  an  alleged  error  in  the  form 
of  the  verdict:  Jones  v.  Snider,  8  Or.  127. 

*'  Decision  and  judgment  are  against  law," — too  indefinite 
a  specification  of  error:  State  v.  McKinnon,  8  Or.  487. 

Notice  of  appeal  to  the  Supreme  Court  must  be  signed  by 
attorney  of  record,  and  cannot  be  signed  by  appellant 
himself:  Tojjpk'ton  v.  Nelson,  10  Or.  437. 

Change  of  attorneys,  not  subsLituted  of  record,  does  not 
alter  this  requirement:  Id. 

"Admitting  or  excluding  testimony  as  shown  by  the  bill 
of  exceptions,"  is  too  iudeliuite  a  specification  of  error: 


Appeal  and  Error. 


39 


Appeal  and  Error  (continued). 

N.  P.  Terminal  Co.  v.  Lownbcrg,  11  Or.  286;  contra, 
Krewpon  &  Co.  v.  Purdom,  13  Or.  563. 
Kotice  of  appeal  in  proceedings  supplemental  to  execution 
must  specify  errors  relied  on:  Williams  v.  Gallick,  11 
Or.  337. 

Sufficiency  of  notice  must  appear  on  its  face;  court  can- 
not inquire  whether  in  fact  it  gives  respondent  notice: 
Neppach  v.  Jordan,  13  Or.  246. 

For  the  possession  of  the  premises  described  in  the  com- 
plaint,"—sufficient  description  of  the  judgment  and 
the  premises  in  the  notice:  Id. 

A  notice  is  sufficient  in  which  the  essential  facts  required 
in  a  notice  may  be  made  out  by  reasonable  intend- 
ment: Id.  •      1  u 

Misdescription  of  date  of  judgment  in  notice  is  waived  by 
appearing  and  obtaining  continuance:  Moorebouse  v. 
Donica,  13  Or.  435. 

On  appeal  from  Justice's  Court,  notice  which  makes 
known  that  an  appeal  is  taken  in  the  particular  case 
is  sufficient:  Lancaster  v.  McDonald,  14  Or.  264;  Starks 
v.  Staflbrd,  14  Or.  317. 

In  such  appeal,  a  notice  which  names  the  plaintiff, 
Amanda  H.  Starks,  as  "A.  11.  Starks,"  is  sufficient: 
Starks  v.  Stafford,  14  Or.  317. 

In  case  of  appeal,  a  specification  of  errors  claimed  to 
have  been  committed  is  necessarily  similar  to  that 
which  constitutes  the  assignment  of  errors,  in  a  suit 
in  error:  Coleman  v.  Yesler,  1  W.  T.  591. 

Notice  of  appeal  and  notice  in  case  of  error  do  not  neces- 
sarily assume  the  same  form:  Parker  and  Boyer  v. 
Dennev,  2  W.  T.  176. 

The  one"  contains  a  particular  description  of  the  errors 
assigned;  the  other  contains  a  specific  list  of  injurious 
rulings,  order,  or  decisions:  Id. 

The  object  of  l)oth  is  to  narrow  the  range  of  controversy 
and  to  apprise  the  opposite  party  and  the  appelhito 
court  of  its  intent:  Id. 

At  common  law,  an  assignment  of  error  is  a  pleading 
whose  allegations  are  to  be  tested  by  the  record,  and 
the  statutory  notice  is  essentially  the  same:  Id. 


40  Appeal  and  Error. 

Appeal  and  Error  (continued). 

A  notice  of  appeal  is  not  in  the  nature  of  a  pleading,  but 
rather  of  an  election,  but  the  same  rules  of  brevity  and 
simplicity  should  apply:  Id. 

Suliicicnt  in  notice  of  appeal  to  state  that  appellant  has 
been  aggrieved  by  the  orders,  rulings,  and  decisions  fol- 
lowing, and  then  severally  enumerate  them  by  descrip- 
tions sufficient  to  identify  each:  Id. 

Giving  of  notice  of  appeal  and  the  entry  of  the  same  in 
the  journal  of  the  trial  court,  under  the  act  of  1883, 
has  the  effect  of  transferring  the  cause  to  the  Supreme 
Court:  Meeker  v.  Gardella,  2  W.  T.  355. 

If  a  co-party  does  not  join  an  appeal  or  voluntarily  ap- 
pear in  the  Supreme  Court,  he  must  be  served  with  a 
notice  of  appeal  provided  by  statute:  Parker  v.  Denny, 
2  W.  T.  360. 

Notice  of  an  intention  to  appeal  is  not  notice  of  an  appeal 
actually  prosecuted:  Id. 

AVhen  notice  of  appeal  is  entered  in  the  record  of  the  Dis- 
trict Court  prior  to  the  order  sought  to  be  appealed 
from,  both  being  in  the  records  of  the  same  day,  the 
presumption  is,  tliat  the  judgment*  has  been  first  en- 
tered: P.  S.  I.  Co.  V.  Worthington,  2  W.  T.  472. 

6.  Service  and  Return. 

Where  last  day  falls  on  Sunday,  service  may  be  made  on 
Monday  following:  Carothers  v.  Wheeler,  1  Or.  196. 

It  must  appear  that  the  notice  was  served  on  the  party 
or  his  attorney,  and  filed:  Strang  v.  Keith,  1  Or.  312. 

On  appeal,  return  of  service  of  notice  may  be  amended: 
Dolph  V.  Nickum,  2  Or.  202;  Sceley  v.  Sebastian,  3  Or. 
563. 

In  the  county,  service  of  notice  may  be  on  the  party  or 
his  attorney;  outside  of  county,  on  party  only:  Lindley 
V.  Wallis,  2  Or.  203;  Rees  v.  Rees,  7  Or.  78. 

When  service  is  made  by  leaving  at  office  or  residence, 
return  nmst  show  that  it  was  left  between  the  hours 
fixed  by  statute:  Rees  v.  Rees,  7  Or.  78. 

Manner  of  such  service  may  be  in  accordance  with  title 
3,  page  278,  of  Code  (p.  469,  Hill's  A.  L.):  Id. 

Notice  of  appeal  from  justice's  decision  may  be  served  on 
the  party  or  his  attorney,  if  residing  in  the  county: 
Carr  v.  Hurd,  3  Or.  160. 


Appeal  and  Error.  41 

Appeal  and  Error  (continued). 

Service  and  return  in  criminal  case;  service  when  re- 
spon(]ent  is  not  a  resident  of  county:  State  v.  Brown,  5 
Or.  119. 

Proof  of  service  in  the  form  of  an  indorsement  must  be  on 
the  notice  when  filed,  or  appeal  is  not  perfected:  Briney 
v.  Starr,  G  Or.  207. 

Subsequent  making  or  amendment  of  such  proof  can  only 
be  done  in  the  court  below  after  leave:  Id. 

Presumed  that  service  was  made  within  the  county  of  the 
sheriff  making  the  return:  Roy  v.  Horslcy,  6  Or.  270. 

Presumed  that  the  attorney  served  was  resident  of  the 
county  where  he  was  served  and  practicing:  Id. 

Service  and  return  of  notice  of  appeal  from  a  Justice's 
Court  may  not  be  made  by  the  appellant  himself: 
Saunders  v.  Pike,  6  Or.  312;  Gee  v.  McMillan,  14  Or. 
270. 

Service  on  attorney  can  be  made  only  when  he  is  a  resi- 
dent of  the  county:  Rees  v.  Rees,  7  Or.  78. 

On  appeal  from  Justice's  Court  in  criminal  case,  service 
must  be  made  on  district  attorney  or  private  prosecutor: 
State  V.  Zingsem,  7  Or.  137. 

Service  on  non-resident  by  serving  on  the  clerk  is  suffi- 
cient, although  the  attorney  for  the  respondent,  residing 
in  another  county,  may  know  respondent's  residence: 
Holladay  v.  Elliott,  7  Or.  483. 

Service  of  the  notice  must  precede  filing  the  undertaking, 
and  simply  refiling  the  latter  after  is  insufficient: 
Weiss  V.  Jackson  County,  8  Or.  529. 

Service  by  constable  must  show  that  the  notice  was  served 
in  his  precinct:  Sloper  and  Kelso  v.  Carey,  9  Or.  511. 

County  clerk  cannot  accept  service  and  waive  copy  of  no- 
tice for  the  county  as  respondent:  Read  v.  Beaton 
County,  10  Or.  154.  ^ 

Mistake  of  constable  in  not  serving  notice  of  appeal  does 
not  excuse  appellant:  Scoggin  v.  Hall,  12  Or.  372. 

On  appeal  from  Justice's  Court,  notice  need  not  be  served 
on  the  attorney:  Byers  v.  Cook,  13  Or.  297. 

Objection  to  suUiciency  of  service  of  notice  of  appeal  from 
Justice's  Court  must  be  taken  in  the  Circuit  Court,  or 
will  not  be  considered  in  the  Supreme  Court:  Lancaster 
V.  McDonald,  14  Or.  2G4. 


42  Appeal  and  Error. 

Appeal  and  Error  (continued). 

Service  of  notice  of  appeal  on  the  clerk  of  the  District 
Court  is  essential  in  order  to  confer  jurisdiction  upon 
the  Supreme  Court:  Blinn  v.  Crosby,  2  W.  T.  109. 
3.    Precipe  and  Assignment  of  Errors. 

Where  precipe  directs  notice  to  issue  to  the  adverse  party 
to  appear  at  a  term  subsequent  to  the  next  term  follow- 
ing the  filing  of  the  precipe,  no  appeal  is  taken,  and  on 
motion  case  should  be  dismissed:  Roberts  and  Hoyt  v. 
Tucker,  1  W.  T.  179. 

There  being  no  precipe,  and  the  record  affording  a  court  no 
"means  of  deciding  whether  error  was  committed,  judg- 
ment is  affirmed:  Miskel  v.  Stone,  1  W.  T.  229. 

Act  of  18G5  required  that  a  precipe  perform  the  functions 
of  a  precipe,  and  also  those  of  the  paper  called  assign- 
ment of  errors  under  the  act  of  1862:  MciVimond  v. 
Adams,  1  W.  T.  230. 

The  particularity  of  statement  in  a  precipe  is  analogous 
to  the  particularity  of  statement  of  a  cause  of  action  in 
a  complaint  in  the  lower  court:  Id. 

What  particularity  of  description  of  errors  is  required  in 
precipe:  Id. 

Mere  classification  of  errors,  as  in  this  case,  not  sufficient: 
Id. 

Specific  errors  must  be  pointed  out  and  individualized  by 
a  description  in  the  precipe:  Id. 

This  particularity  of  description  must  be  contained  in  the 
precipe  without  the  aid  of  the  transcript:  Id. 

Motion  for  leave  to  amend  precipe  by  assignment  of  errors, 
where  none  are  assigned  in  the  court  below,  should  be 
denied:  Shorcy  v.  Wyckoff,  1  W.  T.  348. 

Precipe  nmst  contain  a  particular  description  of  the  judg- 
ment to  correct  which  the  writ  of  error  is  sued  out: 
Carr  v.  King  County,  1  W.  T.  418. 

In  suing  out  a  writ  of  error,  no  assignment  of  errors  can 
be  made  except  in  the  precipe:  Lytic  v.  Territory,  1 
W.  T.  435. 

Precipe  for  a  writ  is  analogous  to  a  complaint  in  the  Dis- 
trict Court,  while'  a  notice  thereof  to  be  served  on  the 
adverse  party  or  his  attorney  stands  in  place  of  a  sum- 
mons: Schwabachcr  v.  Wells,  1  W.  T.  500. 


Appeal  and  Error.  43 

Appeal  and  Error  (continued). 

By  means  of  the  former,  jurisdiction  is  acquired  of  the  sub- 
ject-matter, and  of  ttie  person  by  the  latter:  Id. 

Needless  and  superfluous  assignment  of  error  tends  to 
confusion,  and  is  in  effect  no  assignment,  and  would 
justify  the  court  in  affirming  the  judgment  of  the  lower 
court  as  for  want  of  proper  assignment  of  errors:  Brew- 
ster V.  Baxter,  2  W.  T.  135. 

No  assignment  of  errors  is  contemplated  under  the  act  of 
1883  other  than  may  be  required  by  a  rule  of  the  Su- 
preme Court:  Breemer  v.  Burgess,  2  W.  T.  290. 

Rule  5  of  the  Supreme  Court  requires  service  of  assign- 
ment of  errors  under  said  act:  Collins  v.  Citv  of  Seattle, 
2  W.  T.  354;  Parker  v.  Dacres,  2  W.  T.  362;  Brown  v. 
Hazard,  2  W.  T.  464. 

There  being  no  assignment  of  errors  in  a  legal  action,  the 
appeal  should  be  dismissed:  Brown  v.  Hazard,  2  W.  T. 
464. 

Party  who  has  failed  to  make  an  assignment  of  errors 
pertaining  to  his  legal   defense  cannot   have   matters 
growing  out  of  an  equitable  defense  heard  in  the  Su- 
preme Court:  Id. 
4.   Notice  of  Error. 

Notice  of  suing  out  writ  of  error  under  statutes  of  1869 
must  be  to  the  adverse  party;  notice  directed  to  the  at- 
torney insufficient:  Driver  v.  McAllister,  1  W.  T.  367. 

Acknowledgment  of  such  notice  not  good  unless  it  dis- 
closes time,  place,  and  manner  of  service:  Id. 

Imperfect  indorsement  of  signature  of  attorney  to  said 
notice,  accepting  service  thereof,  may  be  made  perfect 
by  aid  of  the  record:  Id. 

Service  of  notice  of  taking  writ  of  error  upon  A.  Phinney 
does  not  well  show  a  service  upon  the  defendant  Arthur 
Phinney:  Waterman  and  Katz  v.  Phinney,  1  \V.  T.  415. 

The  return  should  show  that  service  was  had  In  tlie 
county  of  the  sheriff  niaking  service:  Id.  ♦ 

Precipe  for  a  writ  is  analogous  to  a  complaint  in  the  Dis- 
trict Court,  while  a  notice  thereof  to  be  served  on  the 
adverse  party  or  his  attorney  stands  in  place  of  a  sum- 
mons: Schwabacher  v.  Wells,  1  W.  T.  506. 

By  means  of  the  former,  jurisdiction  is  acquired  of  the 
subject-matter  and  of  the  person  by  the  latter:  Id. 


44  Appeal  and  Error. 

Appeal  and  Error  (continued). 

Defective  service  of  the  notice  is  waived  by  appearance:  Id. 

Acknowledgment  of  the  clerk  of  the  lower  court,  under 
seal, of  the  service  of  a  notice  of  writ  of  error  required 
to  be  served  on  him,  is  not  proof  of  service,  nor  does 
such  acknowledgment  constitute  color  of  service:  Port 
Blakeley  Mill  Co.  v.  Clymer,  1  W.  T.  607. 

The  return  of  the  officer  or  the  affidavit  of  the  party  mak- 
ing the  service  affords  the  proof  provided  by  statute, 
and  unless  the  record  shows  such  proof,  or  there  be 
waiver,  the  court  has  no  jurisdiction:  Id. 

Kotice  of  appeal  and  notice  in  case  of  error  do  not  neces- 
sarily assume  the  same  form:  Parker  and  Boyer  v. 
Denney,  2  W.  T.  176. 

The  one  contains  a  particular  description  of  the  errors 
assigned;  the  other  contains  a  specific  list  of  injurious 
ruling,  orders,  or  decisions:  Id. 

The  object  of  both  is  to  narrow  the  range  of  controversy, 
and  to  apprise  the  opposite  party  and  the  appellate 
court  of  its  extent:  Id. 

At  common  law  an  assignment  of  error  was  a  pleading 
whose  allegations  were  to  be  tested  by  the  record,  and 
the  statutory  notice  is  essentially  the  same:  Id. 

In  suing  out  writ  of  error  in  criminal  cases,  where  service 
on  the  United  Sta'tes  is  necessary,  the  United  States 
attorney  is  the  only  person  on  whom  service  can  be 
made,  and  service  on  his  assistant  will  not  avail:  Ben- 
nett v.  United  States,  2  W.  T.  179. 
5.   Bill  of  Exceptions  and  Statement. 

Bill  of  exceptions  must  be  signed  and  sealed  by  the  judge, 
and  be  part  of  the  record:  Thompbou  v.  Backenstos, 
1  Or.  17. 

Omission  of  clerk  to  file  the  bill  of  exceptions  does  not 
])rojudice  parties'  rights:  Cline  v.  Broy,  1  Or.  89. 

Object  of  statement  is  to  make  that  matter  of  record  which 
before  was  not:  Rickey  v.  Ford,  2  Or.  251. 

Statement  is  not  necessary  in  all  appeals:  Id.;  Pittman 
V.  Pittman,  3  Or.  472. 

Order  enlarging  time  within  which  statement  may  be  made 
and  served  must  be  made  within  the  time  fixed  by  law 
for  the  performance  of  these  requiremeuts:  Scelcy  v. 
Sebastian,  3  Or.  563. 


Appeal  and  Error.  45 

Appeal  and  Error  (continued). 

In  criminal  cases  bill  of  exceptions  must  show  that  the 
questions  were  raised  in  the  court  below:  Fulton  v. 
Earlmrt,  4  Or.  64. 

Bill  of  exceptions  should  be  presented,  allowed,  and  Mgnod 
prior  to  first  day  of  term  after  trial:  Ilolcomb  v.  Teal,  4 
Or.  352;  contra,  Ah  Lep  v.  Gong  Choy  and  Gong  Wing, 
13  Or.  205. 

Must  state  enough  concerning  the  evidence  given  to  show 
whether  instructions  asked  were  proper:  Richards  v. 
Fanning,  5  Or.  356;  State  v.  Lee  Yan  Yan,  10  Or.  305; 
Yelm  Jim  v.  Washington  Territory,  1  W.  T.  63;  Brown 
Brothers  &  Co.  v.  Forest,  1  W.  T.  201;  Thompson  v. 
Washington  Territory,  1  W.  T.  547;  Or.  R.  &  N.  Co.  v. 
Galliher,  2  W.  T.  70. 

How  exceptions  should  be  taken:  Richards  v.  Fanning,  5 
Or.  356;  Murray  v.  Murray,  6  Or.  17;  Kearney  v.  Suod- 
grass,  12  Or.  311. 

Exhibit  attached  and  referred  to  in  the  bill  of  exceptions 
is  a  part  thereof:  Morrison  v.  Crawford,  7  Or.  472;  Ore- 
gonian  Railway  Co.  v.  Wright,  10  Or.  162. 

And  this,  though  such  attached  exhibit  is  not  marked 
''exhibit"  in  any  manner:  Oregonian  Railway  Co.  v. 
Wright,  10  Or.  162. 

Statement  of  the  testimony  and  ruUngs,not  signed  by  the 
judge,  though  certified  as  correct  by  the  attorneys  for 
both  parties,  is  insufficient:  Singer  Mfg.  Co.  v.  Graham, 
8  Or.  17. 

Must  show  all  evidence  relating  to  challenge  of  juror,  or 
the  alleged  error  will  not  be  reviewed:  State  v.  Tom, 
a  Chinaman,  8  Or.  177;  Ilayden  v.  Long,  8  Id.  244; 
McAllister  v.  Washington  Territory,  1  W.  T.  360. 

So  where  abuse  of  discretion  in  permitting  a  child  to  tes- 
tify is  claimed,  the  bill  must  contain  all  the^vulence 
relating  thereto:  State  v.  Jackson,  9  Or.  457. 

Motion  for  new  trial  and  proceedings  had  tlfercon,  to  be 
considered,  must  be  made  a  part  of  the  bill  of  excep- 
tions: Oregonian  Railway  Co.  v.  Wright,  10  Or.  162; 
Chung  Yow  v.  Hop  Chong,  11  Or.  220;  State  v.  Drake, 
11  Or.  396;  McAlhster  v.  Territory,  1  W.  T.  360;  but 
see  Bowen  v.  State,  1  Or.  270;  Kearney  v.  Snodgrass 
and  Minor,  12  Or.  311;  State  v.  Becker,  12  Or.  318. 


46  Appeal  and  Error. 

Appeal  and  Error  (continued). 

Affidavit  in  support  of  motion  for  order  to  abate  nuisance 
need  not  be  made  a  part  of  the  bill:  Ankeny  v.  Fair- 
view  Milling  Co.,  10  Or.  390. 

The  object  of  a  bill  of  exceptions  at  common  law  and  un- 
der the  Code:  State  v.  Drake,  11  Or.  396. 

Order  overruling  motion  for  new  trial  and  exceptions 
based  thereon  are  not  properly  a  part  of  a  bill  of  ex- 
ceptions: Bowcn  V.  State,  1  Or.  270;  Kearney  v.  Snod- 
grass,  12  Or.  311;  State  v.  Becker,  12  Or.  318. 

Bill  of  exceptions  should  be  tendered  immediately  after 
trial  unless  time  is  extended,  but  settlement  and  allow- 
ance may  be  made  at  any  reasonable  time  thereafter: 
Ah  Lep  V.  Gong  Choy,  13  Or.  205. 

Judge  refusing  to  sign  may  be  compelled  by  mandamus; 
delay,  in  such  case,  does  not  prejudice  appellant:  Id. 

Where  bill  is  not  tendered  until  after  the  close  of  the  term 
and  after  extension  of  time  to  file  has  expired,  judge 
has  no  power  to  sign:  Morgan  v.  Thompson,  13  Or.  230. 

Where  party  has  once  duly  excepted  to  the  ruling  of  the 
court,  it  is  not  necessary  to  renew  the  exception  on 
motion  for  a  new  trial  or  in  arrest  of  judgment,  to  pre- 
Ber\'e  it:  Tolmie  v.  Day,  1  W.  T.  46. 

Error  must  be  excepted  to  at  the  time,  and  presented  by 
bill  of  exceptions:  Hartigan  v.  Washington  Territory, 
1  W.  T.  447. 

Under  section  430,  Civil  Practice  Act,  1873,  the  evidence 
in  an  equity  case  cannot  be  brought  to  the  Supreme 
Court  except  by  bill  of  exceptions:  Mann  v.  Young,  1 
W.  T.  454. 

Motion  for  new  trial  because  of  insufficiency  of  evidence, 
or  because  verdict  is  contrary  to  law,  must  clearly 
specify  the  grounds  thereof,  or  bill  of  exceptions  based 
thereon  fails:  Jones  v.  Wiley,  1  W.  T.  603. 

learning  the  day  for  the  settlement  of  a  bill  of  exceptions 
may  not  be  sufficient,  in  case  of  notice  to  the  opposite 
party,  without  also  designating  an  hour;  but  when  a 
day  for  sucii  purpose  is  stipulated  for  by  the  parties, 
neither  can  complain  that  the  hour  of  hearing  is  not 
known:  City  of  Seattle  v.  Buzby,  2  W.  T.  25. 

Only  so  mucii  of  the  evidence  need  be  stated  in  bill  of 
exceptions  as  is  required  to  explain  the  charge  to  the 
jury:  Id. 


Appeal  and  Error.  47 

Appeal  and  Error  (continued). 

Evidence  need  not  be  set  forth  in  bill  of  exceptions  in 
detail:  Id. 

Bill  of  exceptions  must  show  that  instructions  complained 
of  upon  a  particular  point  were  all  the  instructions 
given  on  that  subject:  Oregon  R.  &  N.  Co.  v.  Galliher, 
2  W.  T.  70. 

A  bill  of  exceptions  has  no  place,  and  performs  no  office 
in  a  chancery  court:  Parker  and  Boyer  v.  Denney,  2 
W.  T.  176. 

The  facts  contemplated  in  the  statement  provided  in  sec- 
tion 3  of  the  act  of  1883  are  material,  evidentiary  facts, 
propounded  in  the  progress  of  a  cause  through  the  lower 
court:  Breemer  v.  Burgess,  2  W.  T.  290. 

An  ex  parte  affidavit  filed  with  the  papers  of  the  case,  but 
not  made  a  part  of  the  bill  of  exceptions,  will  not  be 
noticed  by  the  Supreme  Court:  Fox  v.  Territory  of 
Washington,  2  W.  T.  297. 

Where  an  appeal  is  taken  under  the  act  of  1883,  a  bill  of 
exceptions,  subsequently  signed  by  the  judge,  does  not 
meet  the  requirements  that  the  judge  shall  certify  a 
statement  containing  all  the  material  facts  in  the  cause: 
Collins  V.  City  of  Seattle,  2  W.  T.  354. 

The  statement  of  facts  provided  in  section  3  of  the  act  of 
1883,  relative  to  appeals,  is  intended  to  include  every- 
thing material  that  transpired  in  the  cause  not  other- 
wise a  part  of  the  record:  P.  S.  I.  Co.  v.  Worthington, 
2  W.  T.  472. 

Both  statement  and  bill  of  exceptions  in  the  same  case 
are  not  contemplated  under  the  act  of  1883:  Id. 
6.  Undertaking. 

Must  be  filed  within  twenty  days  after  the  judgment  in 
Justice's  Court:  Strang  v.  Keith,  1  Or.  312. 

Firm  name  signed  as  surety  binds  partner  signing^ame 
only,  unless  authorized  by  firm:  Charman  v.  Warner 
and  McLane,  1  Or.  339. 

Insufficiency  of,  can  be  waived  by  respondent,  and  appel- 
lant cannot  question:  Cain  v.  Harden,  1  Or.  360. 

No  undertaking  other  than  bail-bond  necessary  in  crim- 
inal appeal:  State  v.  Ellis,  3  Or.  497. 

Undertaking  must  be  filed  within  ten  days  after  service 
of  notice,  or  the  appeal  is  not  perfected:  Canyon  Road 


48  Appeal  and  Error. 

Appeal  and  Error  (continued). 

Co.  V.  Lawrence,  3  Or.  519;    Cross  v.  Chichester,  4  Or. 
114;  N.  P.  Terminal  Co.  v.  Lowenberg,  11  Or.  286. 

Exceptions  to  sureties  must  be  made  within  five  days 
after  the  fihng:  Lewis  v.  Lewis,  4  Or.  209. 

Affidavits  of  sureties  must  be  filed  contemporaneously 
with  undertaking:  Ilolcomb  v.  Teal,  4  Or.  352;  Alber- 
son  V.  MahafFey,  6  Or.  412;  State  v.  McKinmore,  8  Or. 
207;  Pencinse  r.  Burton,  9  Or.  178. 

When  undertaking  for  stay  of  proceedings  has  been  given, 
the  Circuit  Court,  on  motion,  may  recall  an  execution 
issued:  Bentley  v.  Jones,  8  Or.  47. 

Undertaking  must  not  be  limited  in  amount:  State  v. 
McKinmore,  8  Or.  207. 

Notice  must  be  served  before  undertaking  is  filed,  and 
simply  refiling  latter  after  service  is  insufficient:  Weiss 
V.  Jackson  County,  8  Or.  529. 

Motion  for  leave  to  file  new  undertaking,  after  motion  to 
dismiss,  must  be  accompanied  by  a  showing  that  the 
defect  in  former  undertaking  occurred  by  excusable 
mistake:  Pencinse  v.  Burton,  9  Or.  178;  De  Lashmutt 
V.  Sell  wood,  10  Or.  51. 

After  the  time  for  filing  has  expired,  a  new  undertaking 
cannot  be  substituted,  on  exception  to  the  sureties  on 
former  one  being  filed:    Simison  v.  Simison,  9  Or.  335. 

On  appeal  from  order  of  confirmation  of  judicial  sale, 
undertaking  to  pay  value  of  use  of  premises  pending 
appeal  is  void  as  not  provided  for  by  statute,  and  does 
not  bind  the  sureties:  Bank  of  British  Columbia  v. 
Harlow  and  Page,  9  Or.  338. 

Such  bond  not  being  provided  for  by  statute  gives  appel- 
lant no  right  to  hold  possession:  Id. 

Undertaking  may  be  filed  same  day  as  notice,  and  in  such 
case  is  presumed  filed  after  notice:  Poppleton  v.  Nel- 
son, 10  Or.  437. 

Though  undertaking  is  filed  before  notice,  upon  motion 
to  dismiss,  a  cross-motion  being  filed,  leave  may  be 
granted,  on  proper  terms,  to  file  a  new  undertaking 
upon  a  showing  of  excusable  mistake:  Hawthorne  v. 
City  of  East  Portland,  12  Or.  210. 

Affidavit  of  (jualification  of  sureties  on  appeal  having  been 
made  prior  to  service  of  notice  of  appeal  from  Justice's 


Appeal  and  Error.  49 

Appeal  and  Error  (continued). 

Court,  leave  to  perfect  the  appeal  by  filing  new  under- 
taking should  bo  granted,  or  the  motion  to  dismiss  over- 
ruled: Ilosford  V.  Logus,  13  Or.  130. 

Undertaking  is  not  defective  if  executed  after  judgment, 
though  before  notice  was  served:  Byers  v.  Cook,  13  Or. 
297. 

The  giving  of  a  counter-undertaking  by  respondent  to 
prevent  stay  of  proceedings  and  to  enforce  the  judg- 
ment, does  not  discharge  the  sureties  on  the  appellant's 
undertaking:  Ah  Lcp  v.  Gong  Choy,  13  Or.  429. 

The  consideration  for  the  counter-undertaking  is  the  privi- 
lege of  enforcing  the  judgment:  Id. 

Clerk  should  certify  up  both  undertakings  when  counter- 
undertaking  is  given:  Id. 

Justice  of  peace  has  no  power  to  permit  filing  of  under- 
taking after  the  thirty  days  for  taking  appeal  have  ex- 
pired: Odell  V.  Gotfrcy,  13  Or.  466. 

On  appeal  from  justice,  it  is  not  essential  that  the  appel- 
lant himself  sign  the  undertaking;  it  is  sufficient  if 
signed  by  the  sureties:  Drouilhat  v.  Rottner,  13  Or. 
493. 

Undertaking  for  double  rental  value  of  premises  is  a  pre- 
requisite to  appeal  in  a  forcible  entry  and  detainer  case: 
Danvers  v.  Durkin,  14  Or.  37. 

AjQidavit  of  surety  not  stating  the  amount  he  is  worth  ia 
fatally  defective:  Starks  v.  Stafford,  14  Or.  317. 
7.  Transcript  and  Record. 

Transcript  must  be  filed  by  second  day  of  term,  or  Su- 
premo Court  has  no  jurisdiction:  Heatherly  v.  Hadley^ 
2  Or.  119;  Dolph  v.  Nickum,  2  Or.  205. 

When  time  is  too  brief  to  prepare  transcript,  extension 
may  be  granted  by  circuit  judge  or  Supreme  Court: 
Dolph  V.  Nickum,  2  Or.  203.  ^ 

Application  for  extension  should  be  made  within  the  time 
for  filing:  Id. 

Transcript  from  Justice's  Court  on  appeal,  not  sufficiently 
docketed  when  filed  in  Circuit  Court,  to  allow  execu- 
tion to  issue:  Chapman  v.  Raleigh,  3  Or.  34. 

Appellant  must  bring  perfect  record;  lost  originals,  in- 
cluding notice  of  appeal,  must  be  supplied  by  copies: 
Wolf  V.  Smith,  6  Or.  75. 

Or.  Dig.— 4 


60  Appeal  and  Error. 

Appeal  and  Error  (continued). 

Affidavit  in  support  of  motion  for  order  to  abate  nuisance 
is  part  of  transcript:  Ankeny  v.  Fairview  Milling  Co., 
10  Or.  390. 

Order  enlarging  time  to  file  transcript  in  criminal  cases 
must  be  made  by  trial  court:  State  v.  Bovee,  11  Or.  57. 

Referee's  report  in  action  at  law  is  no  part  of  the  tran- 
script: Osborn  v.  Graves,  11  Or.  526. 

Whether  by  stipulation  without  order  of  court  time  to  file 
transcript  can  be  extended,  quasre:  Peterson  v.  Foss, 
12  Or.  81.  - 

Transcript  cannot  be  taken  up  and  filed  by  respondent  on 
appeal  from  Justice's  Court,  when  the  appellant  neglects 
to  do  so:  Steel  v.  Rees,  13  Or.  428. 

Judgment  of  affirmance  or  reversal  will  not  be  entered  un- 
less a  transcript  be  filed:  Roberts  and  Hoyt  v.  Tucker, 
1  W.  T.  179. 

Seven  pieces  of  paper  pinned  together,  each  certified  to  be 
a  copy  of  the  correspondent  paper  in  court  below,  with 
no  other  certificate,  do  not  constitute  a  transcript: 
Miskel  V.  Stone,  1  W.  T.  229. 

Receipt  of  attorney,  filed  with  the  papers  of  the  case, ' 
showing  satisfaction  of  the  judgment,  is  properly  certi- 
fied up  as  a  part  of  the  transcript:  Lyons  v.  Bain,  1 
W.  T.  482. 

A  pro  forma  judgment  cannot  be  recognized  as  final  and 
entitled  to  review,  unless  the  transcript  contains  the 
certificate  prescribed  in  section  18,  page  25,  Laws  of 
1875:  McMullen  v.  McGilvrey,  1  W.  T.  513. 

Written  evidence  within  section  453,  Civil  Practice  Act  of 
1877,  for  the  purpose  of  appeal,  defined:  Coleman  v. 
Yesler,  1  W.  T.  591;  Seattle  &  W.  W.  R.  R.  Co.  v.  Ah 
Kow,  2  \\\  T.  36. 

Certificate  authenticating  a  transcript  held  void,  both  for 
its  indcfinitenoss  and  for  want  of  a  seal,  and  because 
the  matter  certified  to  is  not  a  transcript:  Coleman  v. 
Yesler,  1  W.  T.  591'. 

Upon  good  cause>  shown,  a  motion  to  amend  the  certificate 
or  substitute  a  correct  certificate  would  be  allowed  if 
thereby  a  perfect  transcript  could  be  obtained:  Id. 

The  whole  of  the  evidence  must  be  certified  on  an  appeal 
case:  Parker  v,  Denny,  2  W.  T.  360. 


Appeal  and  Error.  gj 

Appeal  and  Error  (continued). 

A  transcript  not  sent  up  in  obedience  to  the  statutory 
notice   ,s  not  to  be  received  by  the  Supreme  Court 
i^ort  Blakeley  Mill  Co.  v.  Clymer,  1  W  T  G07 

Evidence  in  a  cause  can  only  be  authenticated  by  the  pre- 
siding judge  of  the  lower  court,  or,  in  a  proper  cJo  of 
written  testimony,  by  the  clerk:  Seattle  &  W   W  R   R 
Co.  V.  Ah  Kow,  2  W.  T.  36. 

The  judge  in  the  lower  court  who  decides  the  case  is  em- 
powered to  certify  the  evidence,  though  such  evidence 
was  taken  before  his  predecessor:  Id 

Certificate  of  a  former  judge  or  of  the  short-hand  reporter 
gives  no  sanction  to  such  evidence-  Id 

Only  when  the  evidence  consists  wholly  of  written  testi- 
mony can  It  be  certified  to  by  the  clerk    Id 

What  degree  of  fullness  and  certainty  is  required  in  clerk's 
ccrtific-ate  of  record  authenticated  in  the  lower  court: 
bteamboat  Zephyr  v.  Brown,  2  W  T  44 

The  provisions  of  the  Code,  that  the  clerk  shall  forthwith 
upon  payment  of  his  fees  transmit  a  transcript  of  the 
record  in  the  cause,  does  not  require  an  unreasonable 
instantaneousness  of  action,  and  the  appellant  should 
look  after  and  supervise  the  preparation  of  his  tran- 
script:   Crawford   and  Harrington  v.  Haller,  2  W    T 

The  intent  of  the  language  in  section  459  of  the  Code  is, 
that  t^he  clerk  shall,  as  quickly  as  may  be  consistent 
with  the  nature  of  the  record  and  the  appellant's  actions 
and  directions,  send  up  the  transcript-  Id 

Failure  of  the  transcript  to  reach  the  Supreme  Court 
speedily  IS  not  to  be  imputed  to  negligence  of  the  clerk 
until  the  presumption  that  he  has  acted  as  he  ought  is 
fairly  rebutted:  Id. 

Certificate  by  the  clerk  that  the  evidence  contained^n  the 
record  is  all  the  evidence  in  the  cause  reported  to  the 
trial  court  by  the  referee,  to  whom  the  cause  was  re- 
lerred  for  taking  and  recording  the  evidence,  is  insuf- 
hcient  as  not  showing  that  all  the  evidence  in  the  case 
18  certified:  Mulkey  v.  McGrew,  2  W  T  259 
Parties  cannot  waive  such  certificate  by  stipulation  or 
estoppel:  Id. 

The  Supreme  Court  will  not  take  notice  of  an  ex  parte 


52  Appeal  and  Error. 

Appeal  and  Error  (continued). 

affidavit  filed  with  the  papers  in  the  case,  but  not 
embodied  in  the  bill  of  exceptions:  Fox  v.  Territory,  2 
W.  T.  297. 

Rules  of  trial  courts  are  part  of  the  record  of  every  cause 
tried  therein,  but  cannot  be  considered  on  appeal  unless 
properly  certified  as  part  of  the  record:  W.  W.  P.  &  P. 
Co.  V.  Budd,  2  W.  T.  336. 

In  an  appeal  under  the  act  of  1883,  the  evidence  cannot 
be  certified  to  the  Supreme  Court  by  the  clerk  of  the 
District  Court  under  the  Code  of  1881:  Meeker  v.  Gar- 
della,  2  W.  T.  355. 

When  an  appeal  is  taken  under  the  Code  of  1881,  the  evi- 
dence must  be  certified  in  accordance  with  the  provis- 
ions of  section  451  of  that  Code:  Parker  v.  Denney,  2 
W.  T.  360. 

Certificate  of  the  district  clerk  failing  to  show  that  the 
evidence  upon  which  the  case  is  tried  in  the  lower  court 
has  been  certified  to  the  Supreme  Court,  the  appeal  was 
dismissed:  Brown  v.  Hazard,  2  W.  T.  464. 

Though  the  certificate  of  the  clerk  of  the  lower  court  fails 
to  mention  an  assignment  of  errors,  yet  if  the  record 
shows  the  existence  of  the  same  properly  served,  there 
is  no  ground  of  dismissal:  P.  S.  I.  Co.  v.  Worthington, 

2  W.  T.  472. 

Instructions  of  the  lower  court,  returned  into  the  appellate 
court  as  a  separate  paper  with  no  other  sanction  than 
the  clerk's  certificate,  are  stricken  from  the  files:  Id. 

Statement  of  facts  coming  to  the  Supreme  Court  separate 
from  the  transcript,  bearing  no  evidence  that  it  was 
transmitted  with  the  transcript  by  the  clerk  of  the  Dis- 
trict Court,  cannot  be  considered  by  the  appellate  court 
as  a  part  of  the  record:  Id. 
8.   Effect. 

On  appeal  by  garnishee  after  paying  judgment  under  pro- 
test, the  duty  of  the  sheriff  is  still  to  apply  the  money 
to  the  satisfaction  of  the  judgment:  Dufernoy  v.  Stitzel, 

3  Or.  58. 

Appeal  does  not  afTcct  conclusive  nature  of  decision  until 
tlu;  decision  is  reversed:  Warner  v.  Myers,  3  Or.  218. 

In  criminal  cases,  does  not  vacate  the  judgment  in  the 
court  below:  Whitley  v.  Murphy,  5  Or.  328. 


Appeal  and  Error.  68 

Api)eal  and  Error  (continued). 

A  suit  is  deemed  pending  in  the  trial  court  until  appeal 
is  perfected,  or  time  for  taking  has  expired:  Dick  v. 
Kendall,  G  Or.  166;  Garrison  v.  Checney,  1  W.  T.  489. 

Circuit  Court  cannot  render  judgment  against  sureties  on 
an  undertaking  on  appeal  from  justice  in  a  criminal 
case,  where  the  notice  of  appeal  and  transcript  are  not 
filed:  State  v.  Zingsera,  7  Or.  137. 

Writ  of  error,  under  statute  of  1873,  is  not  the  begin- 
ning of  a  new  action,  but  a  proceeding  in  a  pending 
action:  Garrison  v.  Cheeney,  1  W.  T.  489. 

The  giving  of  a  notice  of  appeal,  and  the  entry  of  the 
same  on  the  journal  of  the  trial  court  under  the  act  of 
1883,  has  the  efl'ect  of  transferring  the  cause  to  the  Su- 
preme Court:  Meeker  v.  Gardella,  2  W.  T.  355. 
9.   Dismissal  of. 

In  a  case  where  it  was  uncertain  whether  appeal  was 
taken  in  good  faith  or  not,  on  appeal  being  dismissed 
for  want  of  prosecution,  the  damages  fixed  by  statute 
were  not  allowed:  Coffin  v.  Hanner,  Jennings,  &  Co., 
1  Or.  236. 

After  appeal  is  perfected,  on  failure  to  file  transcript,  how 
respondent  may  obtain  affirmance:  Heatherly  v.  Ilad- 
ley  and  Owen,  2  Or.  117;  Roberts  and  Hoy t  v.  Tucker, 
1  W.  T.  179;  Roberts  and  Miner  v.  Bush,  1  W.  T.  181. 

Motion  to  dismiss,  on  ground  that  no  statement  or  bill  of 
exceptions  has  been  made,  will  not  be  entertained: 
Rickey  v.  Ford,  2  Or.  251;  Pittman  v.  Pittman,  3  Or. 
472. 

Appeal  from  judgment  for  want  of  answer  gives  court  no 
power  except  to  dismiss:  Passman  v.  Baumgartner,  3 
Or.  469. 

Appeal  will  be  dismissed  on  motion  if  the  undertaking  is 
not  filed  within  ten  days  after  service  of  notice  :^'any on 
Road  Co.  V.  Lawrence,  3  Or.  519;  Cross  y.  Chichester, 
4  Or.  114;  N.  P.  Terminal  Co.  v.  Lowenbcrg,  1 1  Or.  286. 

When  want  of  jurisdiction  apjxjars,  court  will,  at  any 
stage,  of  its  own  motion,  dismiss:  Evans  v.  Christian,  4 
Or.  375;  Tolmic  v.  Dean,  1  W.  T.  46. 

Dismissal  is  equivalent  to  affirmance  of  judgment  if  the 
appellate  court  had  gained  jurisdiction:  Simpson  v. 
Prather,  5  Or.  87. 


54  Appeal  and  Error. 

Appeal  and  Error  (continued). 

Court  may  dismiss  appeal  and  affirm  the  judgment  when 
appellant  does  not  pay  trial  fee:  Bailey  v.  Frush,  5  Or. 
136. 

Circuit  Court  dismissing  appeal  for  want  of  jurisdiction 
cannot  affirm  judgment:  Long  v.  Sharp,  5  Or.  439; 
Neppach  v.  Jordan,  13  Or.  246. 

Appeal  from  justice  in  criminal  case  not  being  perfected, 
Circuit  Court  cannot  render  judgment  against  the  ap- 
pellant and  his  sureties  on  his  bond,  in  dismissing  the 
appeal:  State  v.  Zingsem,  7  Or.  137. 

Dismissal  for  defects  in  the  undertaking  does  not  operate 
as  an  affirmance:  State  v.  McKinnon,  8  Or.  485. 

That  the  errors  assigned  in  the  notice  do  not  appear  by 
the  transcript,  will  not  be  considered  on  motion  to  dis- 
miss: De  Lashmutt  v.  Sellwood,  10  Or.  51. 

Dismissal  of  appeal  from  order  refusing  mandamus  cannot 
be  had  on  the  ground  that  another  pending  case  in- 
volves the  ultimate  question  of  right  in  dispute:  Simon 
V.  Durham,  10  Or.  52. 

Appeal  dismissed  where  original  paper  was  lost  before 
transcript  was  sent  up,  and  a  sworn  copy  was  attempted 
to  be  substituted  in  Supreme  Court:  Corbitt  and  Mac- 
leay  v.  Bauer,  10  Or.  340. 

Such  substitution  must  be  made  in  the  Circuit  Court: 
Id. 

Dismissal  for  want  of  service  of  notice  on  some  parties, 
where  decree  can  be  rendered  without  affecting  them, 
will  not  be  granted:  Poppleton  v.  Nelson,  10  Or.  437. 

Appeal  from  Justice's  Court  should  not  be  dismissed  for 
defect  in  undertaking  that  the  sureties  made  affidavit 
thereon,  as  to  their  qualification,  prior  to  the  service  of 
the  notice  of  appeal,  where  the  appellant  asks  leave  to 
perfect  the  appeal  by  filing  new  undertaking:  Hosford 
V.  Logus,  13  Or.  130. 

Wbere  tbe  notice  of  appeal  from  Justice's  Court  is  fatally 
defective,  no  judgment  but  for  dismissal  can  be  given: 
Neppach  v.  Jordan,  13  Or.  246. 

Assigimients  in  motion  to  dismiss,  that  court  has  no  juris- 
diction, no  appeal  has  been  perfected,  and  appellant 
never  gave  undertaking,  are  too  general  to  be  consid- 
ered: Byers  v.  Cook,  13  Or.  207. 


Appeal  and  Error.  55 

Appeal  and  Error  (continued). 

Misdescription  of  date  of  judgment  in  notice  of  appeal 
from  justice  is  waived  by  appearing,  and,  on  motion, 
obtaining  a  continuance  of  the  cause  till  the  next  term: 
Moorhouse  v.  Donica,  13  Or.  435. 

On  failure  of  plaintiff  to  file  transcript,  the  defendant  in 
error  may  dismiss  for  want  of  transcript,  or  secure  a 
transcript  and  have  the  judgment  affirmed  or  reversed : 
Roberts  and  Iloyt  v.  Tucker,  1  W.  T.  179;  Roberts  and 
Miner  v.  Bush,  1  W.  T.  181. 

Unless  it  satisfactorily  appears  that  the  transcript  con- 
tains all  the  evidence  introduced  at  the  trial  in  the 
court  below  without  jury,  appellate  court  has  no  juris- 
diction, and  must  dismiss:  McGowan  v.  Petit,  1  W.  T. 
514. 

Appellant  failing  to  show  any  cause  whatever  for  failure 
to  file  the  transcript  in  time,  cause  is  dismissed:  Craw- 
ford and  Harrington  v.  Haller,  2  W.  T.  161. 

Appeal  dismissed  because  a  complete  transcript  is  not 
certified  to  the  Supreme  Court,  and  because  the  brief  of 
the  plaintiff  in  error  was  not  filed  within  the  time  pre- 
scribed by  rule  10  of  the  Supreme  Court:  Lewis  v.  Host, 
2  W.  T.  402. 

Appeal  dismissed  because  it  did  not  appear  from  the 
record  that  the  notice  of  appeal  was  ever  made,  or  filed 
with  the  clerk  of  the  court  in  which  judgment  is  ren- 
dered: Crawford  and  Harrington  v.  Haller,  2  W.  T.  161; 
Sayward  v.  Guye,  2  W.  T.  420. 

Certificate  of  the  district  clerk  failing  to  show  that  the 
evidence  upon  which  the  case  is  tried  in  the  lower 
court  has  been  certified  to  the  Supreme  Court,  appeal 
was  dismissed:  Perry  v.  Stone,  2  W.  T.  464. 

There  being  no  assignment  of  errors  in  a  legal  action,  the 
appeal  should  be  dismissed:  Crown  v.  Hazard,  2J\V.  T. 
464. 

Though  the  certificate  of  the  clerk  of  the  lower  court  fails 

to  mention  assignment  of  errors,  if  the  record  shows  the 

existence  of  the  same  properly  served,  there  is  no  ground 

for  dismissal:  P.  S.  I.  Co.  v.  Worthington,  2  W.  T.  472. 

10.   Practice. 

In  criminal  cases,  court  may  reverse  or  affirm  but  not 
modify  judgment:  HoweU  v.  State,  1  Or.  241. 


56  Appeal  and  Error. 

Appeal  and  Error  (continued). 

On  aflirmanco  of  appeal  from  County  Court,  judgment 
may  be  entered  against  principal  and  surety:  Char- 
man  and  Warner  v.  McLane,  1  Or.  339. 

After  default  in  County  Court,  defendant  cannot  put  in 
answer  on  appeal:  Cain  v.  Harden,  1  Or.  361. 

Same  issues  as  those  tried  in  the  County  Court  must  be 
heard  on  appeal:  Id.;  Moser  v.  Jenkins,  5  Or.  447. 

After  failure  to  file  transcript  by  second  day  of  term,  court 
has  no  jurisdiction  except  to  dismiss:  Ileatherly  v.  Ilad- 
ley  and  Owen,  2  Or.  117.  -      • 

As  a  general  rule,  affirmance  in  appeal  case  is  final,  but 
court  will  hold  control  for  rehearing:  McDonald  v. 
Crusen,  2  Or.  259. 

Jurisdiction  of  Supreme  Court  is  appellate  and  revisory 
only,  and  after  mandate  is  sent  below,  order  will  not 
be  made  substituting  heirs  of  parties  since  deceased: 
Boon  V.  McClane,  2  Or.  331. 

Court  acquires  no  jurisdiction  except  to  dismiss,  on  ap- 
peal from  judgment  for  want  of  answer:  Fassman  v. 
Baumgartner,  3  Or.  469. 

Too  late  to  apply  for  leave  to  perfect  after  motion  to  dis- 
miss has  come  on  for  hearing:  Cross  v.  Chichester,  4 
Or.  114;  Alberson  v.  Mahafi^ey,  6  Or.  412;  State  v.  Mc- 
Kinmore,  8  Or.  207. 

Affidavits  in  support  of  cross-motion  should  be  filed  before 
motion  brought  on  for  hearing:  Id. 

When  appeal  in  criminal  case  abates  by  death  of  accused, 
judgment  is  left  in  force  for  costs:  Whitley  v.  Murphy, 
5  Or.  328. 

In  equity  suits,  the  case  must  be  tried  anew  on  transcript 
and  evidence:  Howe  v.  Patterson,  5  Or.  354;  O'Leary 
V.  Fargher,  11  Or.  225,  overruling  Fahie  v.  Lindsay,  8 
Or.  474. 

Ko  amendment  in  Circuit  Court  changing  the  issues  tried 
in  Justice's  Court  allowed  on  appeal:  Mosor  v.  Jenkins, 
5  Or.  448;  Monroe  v.  N.  P.. Coal  Mining  Co.,  5  Or.  510. 

The  appellant  is  the  "  moving  party,"  and  must  advance 
the  trial  fee:  Bailey  v.  Frush,  5  Or.  136. 

Ameiidiuent  not  changing  issues  tried  in  County  Court 
may  be  allowed  on  appeal:  Monroe  v.  N.  P.  Coal  Min- 
ing Co.,  5  Or.  510. 


Appeal  and  Error.  57 

Appeal  and  Error  (continued). 

The  respondent  in  an  equity  suit  failing  to  appear  in  the 
Supremo  Court  is  presumed  to  have  abandoned  the  ap- 
peal, and  on  appellant  making  prima  facie  case,  decree 
reversed:  Donegan  v.  Murphy,  6  Or.  436. 

On  appeal,  execution  may  be  recalled  by  the  Circuit 
Court  when  an  undertaking  for  stay  of  proceedings  has 
been  filed:  Bentley  v.  Jones,  8  Or.  47. 

No  paper  or  evidence  not  offered  in  the  court  below  can 
be  regarded  on  the  appeal  from  order  recalling  execu- 
tion: Id. 

Recitals  in  record  of  appearance  cannot  be  impeached  by 
afiidavit  on  appeal:  Cau thorn  v.  King,  8  Or.  138. 

On  appeal  from  Justice's  Court,  where  an  oral  reply  to  a 
counterclaim  had  been  made,  Circuit  Court  may  allow 
written  reply  raising  same  issues  to  be  filed:  Rohr  v. 
Isaacs,  8  Or.  451. 

Service  of  notice  must  precede  filing  undertaking,  and 
simply  refiling  latter  is  insufficient:  Weiss  v.  Jackson 
Co.,  8  Or.  529. 

Rules  are  equally  binding  on  court  and  litigants,  and 
cannot  be  waived  by  the  court:  Coyote  G.  &  S.  M.  Co. 
V.  Ruble,  9  Or.  121. 

Petition  for  rehearing  not  filed  within  the  time  fixed  by 
rule  cannot  be  heard:  Id. 

Question  of  the  jurisdiction  of  the  court  below  will  not  be 
considered  on  motion  to  dismiss:  Pencinse  v.  Burton, 
9  Or.  178. 

Cross-motion  for  leave  to  file  good  undertaking  must  be 
accompanied  by  a  showing  that  the  former  defect  was 
the  result  of  excusable  mistake:  Id. 

Power  of  court  to  remand  a  cause  and  require  pleadings 
reframed,  to  relieve  from  mistake,  under  the  Code:  Bran- 
son v.  Oregonian  R'y  Co.,  10  Or.  278.  ~^^ 

Appeal  in  criminal  cases,  taken  under  chapter  23,  Crim- 
inal Code  (page  819,  Hill's  A.  L.),  may  be  heard  at 
same  term:  State  v.  Bovee,  11  Or.  57. 

On  remanding  with  leave  to  amend.  Supreme  Court  can- 
not prescribe  the  nature  and  extent  of  the  amendments: 
Branson  v.  Oregonian  R'y  Co.,  11  Or.  IGl. 

On  filing  an  auicnded  answer,  all  former  ones,  and  de- 
murrers and  motions  relating  thereto,  are  abandoned, 


58  Appeal  and  Error. 

Appeal  and  Error  (continued). 

and  cease  to  be  part  of  the  record  reviewable  on  appeal: 
Wells  V.  Applegate,  12  Or.  208. 

In  equity,  upon  an  appeal  from  a  part  of  a  decree,  the 
appellate  court  is  confined  to  a  trial  de  novo  upon  the 
part  appealed  from:  Shook  v.  Colohan,  12  Or.  239. 

Where  in  an  action  at  law  there  is  error  resulting  in  in- 
jury, and  the  judgment  can  be  segregated,on  remission 
of  the  erroneous  portion,  the  judgment  may  be  affirmed 
as  to  the  balance:  Mackey  v.  Olssen,  12  Or.  429. 

Circuit  Court  cannot  by  rule  require  service  of  copy  of 
undertaking  on  appeal  from  Justice's  Court  to  be  made 
on  opposite  party  on  seeking  to  perfect  appeal:  Hosford 
V.  Logus,  13  Or.  130. 

Motion  to  dismiss  appeal  not  specifically  indicating  the 
defect  objected  to,  it  is  not  too  late  to  apply  to  substi- 
tute new  undertaking  after  motion  comes  on  for  hear- 
ing: Id. 

Except  for  abandonment  of  appeal,  damages  will  not  be 
allowed,  unless  it  clearly  appears  the  appeal  was  for 
purpose  of  delay:  Nelson  v.  Oregon  R'y  etc.  Co.,  13  Or. 
141. 

Statute  must  be  strictly  pursued,  or  Circuit  Court  gair.s 
no  jurisdiction  on  appeal:  Steel  v.  Rees,  13  Or.  428. 

Respondent  cannot  perfect  the  appeal  from  Justice's  Court 
himself,  by  taking  up  and  filing  the  transcript,  and  if 
he  docs,  the  action  of  the  Circuit  Court  thereon  is  a 
nullity:  Id. 

The  clerk  should  certify  both  undertakings  where  counter- 
undertaking  has  been  given:  Ah  Lep  v.  Gong  Choy,  13 
Or.  429. 

The  nature  of  judgment  to  be  entered  on  appeal  where 
counter-utidertaking  has  been  given:  Id. 

"Whether  Supreme  Court  has  power  to  recall  or  change 
mandate  after  sent  below,  (jiiasre:  Id. 

Legal  propositions  decided  on  a  former  appeal  are  the  law 
of  the  case,  and  the  former  decision  tliereon  will  not  be 
retried:  Powell  y.  D.  S.  &  G.  R.  R.  Co.,  14  Or.  22. 

But  where  new  facts  appear,  requiring  ajjjjlication  of  a 
different  rule  of  law,  the  law  of  the  case  does  not  apply 
to  such:  Bloomfield  v.  Buchanan,  14  Or.  181. 

Upon  appeal  from  a  judgment  overruling  a  demurrer, 


Appeal  and  Error.  59 

Appeal  and  Error  (continued). 

appellate  court  will  not  hear  application  for  leave  to 
plead  over:  Powell  v.  D.  S.  &  G.  R.  R.  Co.,  14  Or.  22. 

Such  application  must  be  made  to  the  trial  court  in  the 
first  instance,  and  its  decision  will  be  reviewed  only 
upon  abuse  of  discretion:  Id. 

Amendment  of  1885  respecting  taking  of  testimony  and 
appeals  in  equity  cases  (sec.  397,  Hill's  A.  L.)  applies 
to  ordinary  suits  only,  and  not  to  special  and  collateral 
proceedings:  Martin  v.  Martin,  14  Or.  165. 

The  effect  of  this  amendment  is  to  repeal  sections  allow- 
ing taking  of  depositions,  and  the  employment  of  short- 
hand reporter  in  equity  cases:  Marks  &  Co.  v.  Crow, 
14  Or.  382. 

And  it  seems  such  amendment  leaves  no  provision  for 
depositions  de  bene  esse,  except  reference  first  be  had:  Id. 

But  an  appeal  in  a  case  tried  before  an  amendment  took 
effect  is  governed  by  the  law  as  it  previously  stood:  Id. 

On  failure  of  plaintiff  to  file  transcript,  the  defendant 
in  error  may  dismiss  for  want  of  transcript,  or  secure 
a  transcript  and  have  the  judgment  affirmed  or  reversed: 
Roberts  and  Hoyt  v.  Tucker,  1  W.  T.  179;  Roberts  and 
Miner  v.  Bush,  1  W.  T.  181. 

Where  record  was  destroyed  in  justice's  ofiice  by  fire,  after 
appeal,  but  before  transcript  was  certified  in  the  upper 
court,  plaintiffs  in  error  are  entitled  to  have  their  cause 
docketed  District  Court  to  supply  the  missing  records: 
Mullen  V.  Mullen,  1  W.  T.  192. 

Justice's  Court  was  not  the  proper  court  to  supply  the  de- 
stroyed records  in  such  case:  Id. 

Motion  to  strike  out  a  motion  will  not  be  allowed:  Mann 
V.  Young,  1  W.  T.  454. 

Encumbrance  of  the  record  with  superfluons  matter  should 
be  punished  by  the  imposition  of  costs:  King  Go.  v. 
Collins  and  Condon,  1  W.  T.  469. 

All  the  facts  of  a  case  being  before  a  Supreme  Court  on 
appeal,  it  may  render  such  judgment  as  the  District 
Court  should  have  rendered:  Willey  v.  Morrow,  1  W.  T. 

474. 
When  judgment  is  aflSrmed  as  to  one  of  the  appellees,  he 
is  entitled  to  recover  costs  against  the  appellant,  but 
not  against  the  sureties  of  the  latter:  Id. 


60  Appeal  and  Error. 

Appeal  and  Error  (continued). 

When  the  defendant  appears  in  the  appellate  court  and 
files  a  joinder  of  error,  although  the  same  is  not  con- 
templated by  the  statutes,  it  will  operate  as  a  general 
appearance:  Schwabacher  v.  Wells,  1  W.  T.  506. 

Defendant  by  waiving  service  of  the  motion  to  perfect  the 
transcript,  without  protestation,  has  entered  general 
appearance:  Yesler  v.  Oglesbee,  1  W.  T.  G04. 

What  is  a  "more  favorable  judgment"  on  appeal  from  a 
Justice's  Court  entitling  the  appellant  to  costs:  Baxter 

-     &  Co.  V.  Scotland  and  Jensen,- 2  W.  T.  86. 

Where  service  of  notice  of  appeal  has  been  had  upon 
the  clerk,  upon  proper  application  the  Supreme  Court 
will  permit  a  return  to  be  made  showing  the  fact  of  ser- 
vice, after  the  rendition  of  judgment  upon  the  assump- 
tion of  due  service:  Blinn  v.  Crosby,  2.W.  T.  109. 

Where,  through  any  circumstances  beyond  appellant's 
control,  omission  or  tardiness  in  filing  transcript  has 
happened,  provision  is  made  in  section  400  of  the  Code 
for  his  relief,  and  in  section  461  provision  is  likewise 
made  for  the  rights  of  the  appellee:  Crawford  and  Har- 
rington V.  Haller,  2  W.  T.  161. 

The  striking  out  of  the  evidence  in  a  cause  does  not  oust 
the  jurisdiction  of  the  Supreme  Court,  although  it  may 
destroy  the  efliciency  of  an  appeal:  Meeker  v.  Gardella, 
2  W.  T.  3.55. 

Penalty  inflicted  by  the  court  for  non-compliance  with 
rule  9,  respecting  indorsements  upon  briefs,  and  fail- 
ing to  set  forth  the  names  of  the  parties  to  cases  cited: 
Carroll  v.  Anderson,  2  W.  T.  366. 

A  party,  by  calling  attention  in  his  brief  to  jurisdictional 
defects  in  an  appeal,  and  Avarning  his  adversary  that 
at  the  proper  time  he  would  move  to  dismiss,  does  not 
thereby  appear  generally  and  waive  the  defect:  Wilson 
V.  Wald  and  Campl)ell,  2  W.  T.  376. 

Omission  in  the  record  having  been  ])rought  to  the  atten- 
tion of  the  party,  and  he  taking  no  steps  to  correct  the 
same,  he  wiil  not,  after  the  hearing,  be  allowed  to  cor- 
rect tlie  fault:  Sayward  v.  Guye,  2  W.  T.  420. 

Kotice  under  the  act  of  1883,  in  a  settlement  of  the 
statement  of  facts  to  be  used  on  appeal,  need  not  be 
accompanied  either  with  the  original  or  a  copy  of  the 


Appeal  and  Error.  61 

Appeal  and  Error  (continued). 

statement  of  facts  souglit  to  be  settled:  P.  S.  I.  Co.  v. 
Worthington,  2  W.  T.  472. 

Proper  practice  would  be  to  lodge  the  proposed  statement 
of  facts,  with  notice  of  the  settlement  thereof  in  accord- 
ance with  tlie  act  of  1883,  with  the  clerk  of  the  court 
for  the  inspection  of  the  opposite  party:  Id. 

Where  objection  to  a  statement  of  facts  was  first  made  on 
the  argument  of  the  cause  as  not  being  properly  certi- 
fied, the  court  grant  reasonable  time  in  which  to  au- 
thenticate such  statement:  Id. 
11.  Errors  and  Questions  Considered. 

Court  will  be  bound  by  the  record:  Thompson  v.  Back- 
enstos,  1  Or.  17;  O'Kelly  v.  Territory,  1  Or.  51;  Iloxie 
V.  Hodges,  1  Or.  251;  State  v.  Ducker,  8  Or.  394. 

Without  bill  of  exceptions,  none  except  errors  of  record 
noticed:  Scott  v.  Cook,  1  Or.  25;  Taylor  v.  Patterson 
&  Co.,  5  Or.  121;  Oregonian  R'y  Co.  v.  Wright,  10  Or. 
162;  Newby  v.  Rowland,  11  Or.  133;  State  v.  Drake, 
11  Or.  396;  Page  &  Co.  v.  Smith,  13  Or.  410. 

Irregularity  of  calling  jury  not  regarded  if  appellant  was 
not  prejudiced:  Hart  v.  Territory,  1  Or.  123. 

Judgment  will  not  be  disturbed  where  it  appears  there 
was  evidence  to  warrant  the  verdict,  although  the  bill 
of  exceptions  purports  to  state  all  the  evidence  and 
does  not:  Yamhill  Bridge  Co.  v.  Newby,  1  Or.  174. 

A  judgment  will  not  be  reversed  for  error  which  worked 
no  injury:  Aiken  and  Flavel  v.  Leonard  and  Green,  1 
Or.  224;  Garrison  v.  City  of  Portland,  2  Or.  123;  State 
V.  Garrand,  5  Or.  216;  Terwilliger  v.  Multnomah  Co.,  6 
Or.  295;  Johnson  v.  Shively,  9  Or.  333;  Smith  v.  Cox, 
9  Or.  475;  Salmon  v.  Olds  and  King,  9  Or.  488;  Briscoe 
V.  Jones,  10  Or.  63;  Heneky  v.  Smith,  10  Or.  349; 
Strong  v.  Kamm,  13  Or.  172;  Moorhouse  v.  Donica^l4 
Or.  430;  Yelm  Jim  v.  Territory,  1  W.  T.  63;  Brown 
Bros.  &  Co.  V.  Forest,  1  W.  T.  201;  City  of  Seattle  v. 
Buzby,  2  W.  T.  25. 

No  error  to  refuse  to  instruct  on  point  to  which  there  was 
no  evidence:  Latshaw  v.  Territory  of  Oregon,  1  Or. 
141;  State  v.  Glass,  5  Or.  73;  Glaze  v.  Whitley,  5  Or. 
165;  State  v.  Brown,  7  Or.  186;  Brown  Bros.  &  Co.  v. 
Forest,  1  W.  T.  201. 


62  Appeal  and  Error. 

Appeal  and  Error  (continued). 

When  witness  gives  his  opinion  and  understanding  of 
conversation,  though  it  is  error  to  admit  the  evidence, 
if  his  conclusion  is  correct,  there  is  no  prejudice,  and 
the  judgment  will  not  be  reversed:  Aiken  and  Flavel 
V.  Leonard  and  Green,  1  Or.  224. 

The  exercise  by  the  District  Court  of  its  discretionary- 
power  to  allow  defense  after  a  default  in  Justice's 
Court  will  not  be  reviewed:  Crandall  v.  Piette  and 
Davidson,  1  Or.  226. 

Rejection  of  cumulative  evidence,  which  there  is  no 
ground  for  believing  would  have  changed  the  result,  is 
no  error:  Jackson  v.  Sharff  and  Hill,  1  Or.  246. 

Error  in  sustaining  demurrer  is  waived  by  pleading  over: 
Huffman  v.  McDaniel,  1  Or.  259;  Wells  v.  Applegate, 
12  Or.  208;  Ward  v.  Moorey,  1  W.  T.  104. 

The  granting  or  overruling  of  a  motion  for  a  new  trial 
cannot  be  alleged  as  error:  Bowen  v.  State,  1  Or.  271; 
State  V.  Fitzhugh,  2  Or.  227;  State  v.  Wilson,  6  Or. 
428;  Hallock  v.  City  of  Portland,  8  Or.  29;  State  v. 
McDonald,  8  Or.  113;  State  v.  Drake,  11  Or.  396;  State 
V.  Mackey,  12  Or.  154;  Kearney  v.  Snodgrass,  12  Or.' 
311;  State  v.  Becker,  12  Or.  318;  Tucker  v.  Flouring 
Mills  Co.,  13  Or.  28;  1  W.  T.  6;  Wassissimi  v.  Terri- 
tory, 1  W.  T.  262. 

Such  order  must  be  made  a  part  of  the  bill  of  exceptions, 
to  be  reviewable:  Or.  R'y  Co.  v.  Wright,  10  Or.  162; 
Chung  Yow  v.  Hop  Chong,  11  Or.  220;  State  v.  Drake, 
11  Or.  396. 

But  such  order  is  not  properly  a  part  of  the  bill  of  ex- 
ceptions: Bowen  v.  State,  1  Or,  271;  Kearney  v.  Snod- 
•      grass,  12  Or.  311;  State  v.  Becker,  12  Or.  318. 

An  abuse  of  discretion  must  be  shown  to  make  such  or- 
der reviewable:  State  v.  Drake,  11  Or.  396;  Tucker  v. 
Flouring  Mills  Co.,  13  Or.  28;  Page  v.  Rodney,  2  W.  T. 
461. 

Statute  of  limitations  must  be  pleaded  or  no  advantage  of 
it  can  be  taken  on  error:  Steamer  Scnorita  v.  Simonds, 
1  Or.  274. 

Error  must  be  legally  excepted  to  at  the  time,  or  is 
deemed  waived:  Rogue  River  Mining  Co.  v.  Walker,  1 
Or.  341;  Kearney  v.  Snodgrass,  12  Or.  311;  Blumberg 


Appeal  and  Error.  63 

Appeal  and  Error  (continued). 

V.  McNear  &  Co.,  1  W.  T.  141;  Brown  Bros.  &  Co.  v. 
Forest,  1  W.  T.  201. 
Loss  of  material  paper  from  judgment  roll  no  ground 

reversal:  Carland  v.  Heineborg,  2  Or.  75. 
Where  same  evidence  was  obtained  by  calling  the  wit- 
nesses for  defense,  no  material  injury  was  suffered  by 
not  allowing  defendant  to  ask  a  question  on  cross-ex- 
amination of  a  witness  for  the  prosecution:  Garrison  v. 
City  of  Portland,  2  Or.  123. 
When  bill  of  exceptions  does  not  show  what  answer  was 
made  to  question  asked,  it  is  presumed  to  have  been 
competent:  State  v.  Fitzhugh,  2  Or.  227;  Monroe  v.  N. 
P.  Coal  Mining  Co.,  5  Or.  509. 
Refusal  to  allow  a  question  which  might  legally  have  been 
allowed,  but  which  was  subject  to  discretion  of  court, 
no  error:  Monroe  v.  N.  P.  Coal  Mining  Co.,  5  Or.  509. 
Disregarding  variance  is  discretionary,  and  will  not  be 
reviewed:  Brown  v.  Moore,  3  Or.  434;  Henderson  v. 
Morris,  5  Or.  24. 
Exercise  of  discretion,  except  in  case  of  abuse,  will  not  be 
reviewed:  Pittman  v.  Pittman,  3  Or.  553;  Bennett  v. 
Stephens,  8  Or.  444;   Henderson  v.  Morris,  5  Or.  24; 
State  V.  Jackson,  9  Or.  457;  State  v.  Drake,  11  Or.  396; 
Bowles  V.  Doble,  11  Or.  474;  Adams  v.  Rutherford,  13 
Or.  78;  Page  v.  Rodney,  2  W.  T.  461. 
Abuse  of  discretion  must  appear  affirmatively,  and  will 
not  be  presumed:  Id.;  Henderson  v.  Morris,  5  Or.  24. 
Finding  of  fact  by  court  below  on  trial  without  jury  is 
not  open  to  review:  Fulton  v.  Earhart,  4  Or.  01;  Hal- 
lock  V.  City  of  Portland,  8  Or.  29. 
Where  no  motion  for  new  trial  was  filed,  the  appellate 
court  will  proceed  cautiously  in  setting  aside  a  finding: 
Hallock  V.  City  of  Portland,  8  Or.  29.  ^ 

Where  there  is  no  conflict  of  evidence,  it  is  error  to  find 
contrary  thereto:  Id. 
'  Where  the  record  does  not  show  that  the  evidence  stated 
was  all,  the  court  presumes  there  was  evidence  to  sup- 
port the  findings:  Fulton  v.  Earhart,  4  Or.  01;  Parker 
V.  Monteith,  7  Or.  277. 
Error  not  appearing  affirmatively  in  the  record,  it  is  not 
presumed:  Thompson  v.  Uglow,  4  Or.  369;  Henderson 


64  Appeal  and  Error. 

Appeal  and  Error  (continued). 

V.  Morris,  5  Or.  24;  Dolph  v.  Barney,  5  Or.  192;  Rich- 
ards V.  Fanning,  5  Or.  356;  Monroe  v.  N.  P.  Coal 
Mining  Co.,  5  Or.  509;  Parker  v.  Monteith,  7  Or. 
277;  Lahoy  v.  Knott,  8  Or.  198;  State  v.  Ducker,  8  Or. 
394;  Ladd  and  Bush  v.  Sears,  9  Or.  244;  Tenny  and 
McKenzie  v.  Mulvaney  and  Bemis,  9  Or.  405;  Long  and 
Spaur  V.  Lander,  10  Or.  175;  State  v.  Lee  Yan  Yan,  10 
Or.  365;  Ncwby  v.  Rowland,  11  Or.  133;  Tucker  v. 
Flouring  Mills  Co.,  13  Or.  28;  Danvers  v.  Durkin,  14 
Or.  37. 

Allowance  of  amendment  discretionary;  surprise  no 
ground  for  review  unless  shown  by  the  record:  Hender- 
son V.  Morris,  5  Or.  24. 

In  a  proceeding  in  nature  oi  scire  facias,  defense  of  nul  tiel 
record  is  not  available  in  the  appellate  court,  and  the 
presumption  is,  that  the  court  below  decided  correctly 
on  inspecting  the  record:  McCracken  v.  Swartz,  5  Or. 
62. 

Refusal  to  set  aside  default  and  allow  answer  is  discre- 
tionary, and  not  reviewable  in  absence  of  abuse:  White 
V.  Northwest  Stage  Co.,  5  Or.  99;  Bailey  v.  Williams, 
6  Or.  71. 

No  error  to  refuse  instruction  on  abstract  propositions  or 
hypothetical  questions  not  involved  in  the  case:  Shat- 
tuck  v.  Smith,  5  Or.  125;  Espy  v.  Fenton,  5  Or.  423; 
State  V.  Brown,  7  Or.  186;  Rohr  v.  Isaacs,  8  Or.  451; 
Yelm  Jim  v.  Territory,  1  W.  T.  63;  Schmieg  v.  Wold,  1 
W.  T.  472. 

On  appeal  from  decision  in  a  proceeding  for  leave  to  issue 
execution  on  dormant  judgment,  no  evidence  will  be 
considered  unless  contained  in  the  judgment  roll:  Ladd 
v.  Iligley,  5  Or.  296. 

Finding  of  fact  by  court  below  in  equity  cases  is  not  con- 
clusive on  appeal;  trial  de  novo  on  transcript  and  evi- 
dence will  be  had  in  the  Supreme  Court:  Whitley  v. 
Murphy,  5  Or.  353;  O'Leary  v.  Fargher,  11  Or.  225, 
overruling  Fahie  v.  Lindsay,  8  Or.  474. 

Error  in  overruling  demurrer,  when  waived  by  answering 
over,  cannot  be  assigned  as  error:  Richards  v.  Fanning, 
5  Or.  356;  Olds  v.  Cary,  13  Or.  362. 

Where  the  record  docs  not  show  the  applicability  of  an 


Appeal  and  Ereoe.  65 

Appeal  and  Error  (continued). 

instruction  asked  and  refused,  it  is  presumed  improper: 
Id.;  City  of  Seattle  v.  Busby,  2  W.  T.  25. 

Findings,  if  not  sufficient,  must  be  embodied  in  bill  of 
exceptions,  after  request  made  to  the  trial  court  for  fur- 
ther and  more  specific  findings:  Luse  v.  Isthnms  Tran- 
sit R'y  Co.,  6  Or.  125. 

Error  to  submit  a  question  of  fact  to  the  jury  on  which 
there  is  no  evidence:  Morris  v.  Perkins,  6  Or.  350; 
Ilayden  v.  Long,  8  Or.  244;  Marx  v.  Schwartz,  14  Or. 
177;  Breon  v.  Ilenkle,  14  Or.  494;  Glenn  v.  Savage,  14 
Or.  567. 

Except  want  of  jurisdiction  and  insufficiency  of  the  com- 
plaint, no  errors  but  those  alleged  in  the  notice  of 
appeal  will  be  considered:  McKay  v.  Freeman,  6  Or. 
453;  State  v.  McKinnon,  8  Or.  487;  Weissman  v.  Rus- 
sell, 10  Or.  73. 

Error  to  exclude  testimony  of  witness,  present  during  the 
examination  of  other  witnesses  contrary  to  the  order  of 
the  court,  unless  it  appears  the  party  was  in  complicity 
with  him:    Hubbard  v.  Hubbard,  7  Or.  42. 

Refusal  to  give  special  instructions  substantially  in- 
cluded in  the  general  charge,  no  error:  State  v.  Brown, 
7  Or.  186. 

In  equity  cases,  on  appeal,  verdict  of  a  jury  on  contro- 
verted questions  is  not  to  be  disregarded  unless  clearly 
erroneous:  De  Lashmutt  v.  Everson,  7  Or.  212;  Svvegle 
V.  Wells,  7  Or.  222. 

Objection  that  the  judge  was  not  authorized  to  sit  can- 
not be  heard,  unless  it  was  made  in  the  trial  court: 
State  V.  Whitney,  7  Or.  386. 

That  an  attorney  assisting  the  prosecution  was  present, 
before  the  grand  jury,  no  ground  for  reversal:  State  v. 
Whitney,  7  Or.  386;  State  v.  Justus,  11  Or.  178.  -^ 

Omission  to  instruct  on  matter  pertinent  is  no  error,  un- 
less the  attention  of  the  court  is  called  to*it  at  the 
time:  Page  v.  Finley,  8  Or.  45;  Hurst  v.  Bumside.  12 
Or.  520. 

Bill  of  exceptions  must  show  all  evidence  adduced  on 

challenge  to  a  juror  for  actual  bias,  to  be  considered  on 
Ou.  Dig.— 5 


66  Appeal  and  Error. 

Appeal  and  Error  (continued). 

appeal:    State  v.  Tom,  8  Or.  177;  Hayden  v.  Long,  8 

Or.  244;  McAllister  v.  Territory,  1  W.  T.  360. 
Discretion  of  trial  court  to  admit  evidence  on  promise  of 

attorney  to  connect  the  same  and  make  it  admissible 

subsequently,  is  not  reviewable:    Bennett  v.  Stephens, 

8  Or.  444. 
The  question  on  trial  for  contempt,  or  rule  to  show  cause, 

is  of  fact  merely,  and  will  not  be  reviewed  except  for 

errors  of  law  or  want  of  jurisdiction:    State  v.  McKin- 
-  non,  8  Or.  487. 
It  is  error  for  judge  in  vacation  to  hear  and  determine  a 

case  of  contempt  of  court  committed   in   term  time: 

Id. 
Error  to  permit  counsel,  against  objection,  to  state  facts 

not  in  evidence,  in  argument  to  jury:    Tenny  v.  Mul- 

vaney,  8  Or.  513. 
Objection  to  plaintiflfs  suing  jointly  cannot  be  heard  for 

first  time  on  appeal:  Stingle  v.  Nevel,  9  Or.  G2. 
Specific  objection  to  evidence  waives  any  other  objections, 

and  no  other  will  be  considered  on  appeal:    Ladd  and 

Bush  V.  Sears,  9  Or.  244. 
Error  in  submitting  question  to  jury,  that  should   have 

been  determined  by  the  court,  will  not  avail  where  the 

verdict  evidently  found  the  fact  correctly:    Johnson  v. 

Shively,  9  Or.  333. 
Discretion  to  allow  child  to  testify  will  not  be  reviewed 

except  in  case  of  abuse:  State  v.  Jackson,  9  Or.  457. 
Error  in  giving  instruction,  where  the  inference  from  the 

record  shows  that  no  injury  was  occasioned,  no  ground 

for   reversal:    Salmon    v.  Olds   and   King,  9   Or.  488; 

Briscoe  v.  Jones,  10  Or.  63;  Strong  v.  Kamm,  13  Or. 

172;  Yelm  Jim  v.  Territory,  1  W.  T.  63;  Brown  Bros. 

&  Co.  V.  Forest,  1  W.  T.  201. 
Objection  to  improper  remarks  made  by  district  attorney 

in  argument  must  be  made  at  the  time,  and  exception 

saved,  to  be  available:  State  v.  Lee  Ping  Bow,  10  Or. 

27;  State  v.  Anderson,  10  Or.  448;  State  v.  Abrams,  11 

Or.  169;  State  v.  Drake,  11  Or.  396. 
No  error  to  receive  verdict  in  criminal  case  in  absence  of 

defendant's  counsel:  State  v.  Drake,  11  Or.  396. 
Findings  of  referee,  not  objected  to  below,  will  not  be 


Appeal  and  Error.  67 

Appeal  and  Error  (continued). 

reviewed  on  appeal:    State  v.  Grover,  Chadwick,  and 
Fleischner,  10  Or.  66. 

Testimony  of  husband  against  wife  as  to  matters  commu- 
nicated during  marriage,  though  incompetent,  is  pre- 
sumed given  with  consent  of  wife,  where  record  is  silent: 
Long  and  Spaur  v.  Lander,  10  Or.  175. 

Error  appearing  affirmatively,  injury  is  presumed:  Inver- 
arity  v.  Stowell,  10  Or.  261. 

Bill  of  exceptions  not  purporting  to  give  all  the  evidence 
or  instructions,  error  is  not  presumed  in  giving  or 
refusing  instructions:  State  v.  Lee  Yan  Yan,  10  Or. 
365;  Brown  Bros.  &  Co.  v.  Forest,  1  W.  T.  201;  Thomp- 
son V.  Territory,  1  W.  T.  547;  Or.  R.  &  N.  Co.  v.  Galli- 
her,  2  W.  T.  70. 

Instruction  as  to  burden  of  proof  held  to  apply  to  the 
proper  issues  only,  though  general  in  terms,  where  not 
objected  to  on  that  ground  at  the  time:  Rogers  v.  Wal- 
lace, 10  Or.  387. 

Instructions  as  to  effect  of  written  contract  are  to  be  re- 
viewed by  examination  of  the  terms  of  the  contract,  not 
as  legal  propositions:  Id. 

Where  there  are  several  defenses  pleaded,  some  of  which 
are  bad,  it  will  not  be  presumed  that  evidence  or  instruc- 
tions were  given  relating  to  the  bad,  where  the  record  is 
silent:  Newby  v.  Rowland,  11  Or.  133. 

Slight  variance  not  considered ;  it  is  presumed  that  amend- 
ment was  allowed  on  the  trial:  Davidson  v.  0.  &  C. 
R.  R.  Co.,  11  Or.  136. 

No  errors  not  based  on  judicial  action  of  the  court  below 
can  be  considered:  State  v.  Abrams,  11  Or.  169. 

Error  in  not  striking  out  matter  on  motion,  no  ground  for 
reversal  where  the  verdict  was  general  and  injury  is  not 
apparent:    Krewson  v.  Purdom,  11  Or.  266.  -- 

Findings  of  referee  in  proceedings  supplemental  to  execu- 
tion will  not  be  reviewed,  unless  there  is  no  evidence  to 
sustain  them:  Williams  v.  Gallick,  11  Or.  337. 

Failure  to  find  an  immaterial  issue  of  fraud  is  no  error:  Id. 

Error  to  instruct  jury  to  disregard  ''mere  slight  variances" 
between  witnesses  as  aflecting  their  credit:  State  v. 
Swayze,  11  Or.  357. 

Referee's  report  in  action  at  law  is  not  properly  a  part  of 


68  Appeal  and  Error. 

Appeal  and  Error  (continued). 

the  transcript,  and    cannot  be  considered:    Osborn  v. 
Graves,  11  Or.  526. 

Mere  uncertainty  in  pleadings  not  objected  to  by  motion 
or  demurrer  will  not  be  considered  on  appeal:  Id. 

Error  in  overruling  motion  for  nonsuit  is  cured  by  evi- 
dence in  defense  which  supplies  the  defect:  Bennett  v. 
N.  P.  Ex.  Co.,  12  Or.  49. 

In  criminal  cases,  injury  is  presumed  where  the  error  con- 
sists in  the  infraction  of  a  constitutional  guaranty :  State 
y.  Lurch,  12  Or.  99. 

The  admission  of  dying  declarations  is  discretionary  and 
cannot  be  reviewed:  State  v.  Saunders,  14  Or.  300; 
Hartigan  v.  Territory,  1  W.  T.  447. 

Where  the  questions  between  the  parties  are  chiefly  of  fact 
determined  by  the  verdict,  there  should  be  no  reversal, 
unless  the  error  is  clearly  shown:  Ilurst  v.  Burnside,  12 
Or.  520. 

Instruction  assuming  a  fact  which  should  be  left  to  the 
jury  is  error:  Yarnberg  v.  Watson,  13  Or.  11. 

Variance  not  appearing  affirmatively  to  have  worked  in- 
jury, no  ground  for  reversal:  Tucker  v.  Flouring  Mills 
Co.,  13  Or.  28. 

Admission  of  evidence  of  injury  by  overflowing  plaintiff's 
land,  prior  to  time  alleged  in  the  complaint,  is  not  error, 
and  it  is  presumed  that  the  jury  were  instructed  not  to 
consider  the  same:  Id. 

"Within  the  last  two  years"  in  an  instruction  is  presumed 
to  refer  to  the  two  years  prior  to  the  commencement  of 
the  action:  Id. 

Verdict  for  excessive  damages  is  no  ground  for  reversal  on 
appeal;  refusal  of  trial  court  to  set  it  aside  is  not  re- 
viewable: Nelson  v.  Oregon  R'y  etc.  Co.,  13  Or.  141. 

JCrror  affecting  rights  of  defendant  in  criminal  case,  how- 
ever slight,  is  ground  for  reversal:  State  v.  O'Neil,  13 
Or.  183. 

Appellant  in  Supreme  Court  may  take  advantage  of  error 
committed  against  liim  in  the  court  below,  notwithstand- 
ing defects  in  his  own  pleadings,  unless  such  defects 
would  be  ground  for  arrest  of  judgment  if  rendered  in 
liis  favor:    Minter  v.  Durham,  13  Or.  470. 

Where  two  contracts  are  in  evidence,  a  refusal  to  give  a 


Appeal  and  Error.  69 

Appeal  and  Error  (continued). 

general  instruction,  which  applies  to  but  one  of  them 
the  correct  rule,  is  not  error:  Krewson  <fe  Co.  v.  Purdom, 
13  Or.  563. 

Supreme  Court  is  confined  to  consideration  of  questions 
already  determined  in  the  court  below,  and  cannot  pass 
upon  matters  in  advance  thereof:  Fisk  v.  Ilenarie,  14 
Or.  29. 

Refusal  to  submit  special  questions  to  jury  for  tlicir  find- 
ing thereon  is  discretionary  and  not  reviewable:  Burk- 
hart  V.  Howard,  14  Or.  59. 

Error  in  allowing  motion  to  strike  out  an  answer  is  waived 
by  filing  amended  answer:  liexter  v.  Schneider,  14 
dr.  184. 

Objection  to  the  sufficiency  of  service  of  notice  of  appeal 
from  Justice's  Court,  when  not  made  in  the  Circuit 
Court,  will  not  be  heard  in  the  Supreme  Court:  Lan- 
caster V.  McDonald,  14  Or.  264. 

Decree  concerning  property  rights  in  a  divorce  case,  not 
supported  by  the  allegations  and  proofs,  will  be  re- 
versed: Bender  v.  Bender,  14  Or.  353. 

Instruction  outside  the  issues,  but  in  favor  of  the  party 
complaining  of  it,  is  no  ground  for  reversal:  Moorhouse 
V.  Donaca,  14  Or.  430. 

Defect  in  the  record  not  materially  affecting  the  merits, 
not  sufficient  cause  for  setting  aside  judgment:  Nes- 
qually  Mill  Co.  v.  Taylor,  1  W.  T.  1. 

Trial  of  prisoner  without  entry  of  his  plea,  ground  for 
reversing  judgment:  Palmer  v.  United  States,  1  W.  T.  5. 

Findings  of  fact  by  court  helow,  in  a  case  tried  without 
jurv,  stand  on  appeal  as  the  verdict  of  a  jury:  Madison 
v.  Madison,  1  W.  T.  60;  Wiley  v.  Morrow,  1  W.  T.  474; 
Tierney  v.  Tierney,  1  W.  T.  668;  Baker  and  Hamilton  v. 
McAllister,  2  W.  T.  48.  -^ 

Court  will  not  review  erroneous  instructions^  upon  mere 
abstract  principles  of  law:  Yelm  Jim  v.  Territory,  1 
W.  T.  63. 

Motion  in  arrest  of  judgment  made,  and  afterwards  waived 
in  the  lower  court,  cannot  be  considered  on  appeal: 
Freany  v.  Territory,  1  W.  T.  71. 

Refusal  of  District  Court  to  allow  amendment  on  appeal 
from  Justice's  Court  will  not  be  reviewed  unless  the  pur- 


70  Appeal  and  Error. 

Appeal  and  Error  (continued). 

pose  of  the  amendment   be  made  clearly  to  appear: 
Newberg  and  Abrams  v.  Farmer,  1  W.  T.  182. 

Kefusal  of  District  Court  to  docket  a  cause  on  appeal  from 
Justice's  Court,  where  the  records  below  were  destroyed, 
and  allow  a  record  to  be  supplied,  constitutes  a  final 
judgment,  reviewable  on  error:  Mullen  v.  Mullen,  1 
W.  T.  192. 

All  the  instructions  should  be  before  the  appellate  court 
in  order  to  determine  whether  particular  instructions 
complained  of  were  erroneous:  Brown  Bros.  &  Co.  v. 
Forest,  1  W.  T.  201;  Or.  R.  &  N,  Co.  v.  Galliher,  2 
W.  T.  70. 

Findings  of  fact  by  the  judge  answer  to  a  special  verdict, 
while  the  conclusions  of  law  are  in  the  nature  of  a  gen- 
eral verdict:    Wiley  v.  Morrow,  1  \V.  T.  474. 

Findings  of  lower  court  in  divorce  case  stand  as  the  ver- 
dict of  the  jury;  not  to  be  set  aside  unless  manifestly 
contrary  to  the  evidence:  Tierney  v.  Tierney,  1  W.  T. 
568. 

Findings  of  fact  by  the  lower  court,  like  a.  verdict,  will 
not  be  set  aside  if  any  evidence  appears  upon  which 
they  may  properly  be  sustained:  Tierney  v.  Tierney,  1 
\V.  T.  568;  Baker  and  Hamilton  v.  McAllister,  2  W.  T. 
48. 

Instruction  must  be  shown  to  have  been  pertinent  and 
consistent  with  the  evidence  and  law,  and  the  refusal 
to  give  must  have  worked  injury  to  the  party  asking  it, 
for  refusal  to  be  considered  on  appeal:  City  of  Seattle 
v.  Buzby,  2  W.  T.  25. 

No  error  to  refuse  instruction  in  the  language  requested 
when  such  failure  has  not  been  to  the  injury  of  the 
party  requesting:  Id. 

On  an  appeal  in  equity,  objection  to  the  sufficiency  of  the 
complaint  may  be  heard,  and  the  evidence  in  the  cause 
need  not  be  certified  to  tlie  Supreme  Court:  Seattle  & 
W.  W.  R.  R.  Co.  v.  Ah  Kow,  2  W.  T.  36. 

So  long  as  there  is  evidence  to  support  a  finding  made 
by  the  trial  court,  it  will  not  be  reversed,  though  the 
Supreme  Court  would  make  a  different  finding  on  the 
question  if  presented  anew:  Baker  and  Hamilton  v. 
MciUlister,  2  W.  T.  48. 


Arbitration  and  Award.  71 

Appeal  and  Error  (continued). 

Exception  to  sustaining  a  demurrer  to  the  complaint  is 
not  waived  by  filing  an  amended  complaint:  Wood  v. 
Mastick,  2  W.  T.  G4. 
Where  the  transcript  does  not  show  otherwise,  it  is  pre- 
sumed that  other  parts  of  the  charge  so  modified  the 
instruction  complained  of  as  to  free  it  from  objection: 
Or.  R.  &  N.  Co.  V.  Galliher,  2  W.  T.  70. 
Trial  court  having  committed  error  in  admitting  certain 
evidence  in  its  charge  to  the  jury  withdrew  such  evi- 
dence from  their  consideration,  and  the  error  was  thereby 
cured:  P.  S.  I.  Co.  v.  Worthington,  2  W.  T.  472. 
Appearance.     See  Appeal  and  Error;  Attorneys;  Practice. 
Application  of  Payments.     See  Payment. 
Appropriations.     See  Water  and  Watercourses. 

Must  be  special  appropriation  to  pay  warrants  on  state 
treasury,  unless  claim  is  authorized  to  be  paid  out  of 
general  fund:  Brown  v.  Fleischner,  4  Or.  132. 
Warrants  for  expenses  under  centennial  commission  act 
cannot  be  paid  out  of  appropriation  for  general  fund: 
Simon  v.  Brown,  5  Or.  286. 
Specific  appropriation  to  pay  an  existing  deficiency  may 
be  properly  embraced  in  a  general  appropriation   bill 
under  section  7,  article  9,  of  the  constitution:  Burch  v. 
Earbart,  7  Or.  58. 
Special  tax  not  necessary  under  section  6,  article  9,  of  the 
constitution,  when  there  is  sufficient  funds  from  exist- 
ing taxation  to  pay  deficiency  and  current  expenses:  Id. 
Argument.     See  Attorneys;  Criminal  Law;  Practice. 
Arraignment.     See  Criminal  Law. 
Arbitration  and  A"ward. 

Award  of  referees  is  void  after  authority  to  act  has  ex- 
pired by  failure  to  report  in  time:  Hanner,  Jennings,  & 
Co.  V.  Coffin,  1  Or.  99.  ._^ 

Agreement  to  arbitrate,  unexecuted,  is  no  defense  to  ac- 
tion on  the  contract:  Savage  v.  Glenn,  10  Or.  440. 
Award  which  does  not  determine  all  the  issues  is  not  bind- 
ing: Belt  v.  Poppleton,  11  Or.  201. 
Subsequent  promise  by  person  against  whom  it  is  sought 

to  be  enforced  operates  as  a  ratification:  Id. 
Matters  arbitrated,  which  were  not  included  in  the  issues 
submitted  to  the  arbitrators,  but  submitted  without  ob- 
jection, are  conclusively  settled  by  the  award:  Id. 


72  Arbitration  and  Award. 

Arbitration  and  Award  (continued). 

When  award  substantially  complies  with  the  law  it  should 
not  be  disturbed  for  mere  technical  defects:  Bachelder 
V.  Wallace,  1  W.  T.  107. 

When  terms  of  submission  authorize  majority  of  three 
arbitrators  to  make  a  finding,  it  is  sufBcient  if  two 
make  the  finding:  Id. 

Court  will  presume  in  such  case  that  all  acted,  when  it 
appears  that  ail  were  sworn,  though  but  two  sign:  Id. 
Arrest.     Sec  Malicious  Prosecution. 

Private  person  may  arrest  one  guilty  of  assault  with  dan- 
gerous weapon,  though  not  seeing  the  offense  committed: 
Lander  v.  Miles,  3  Or.  35. 

In  justification  of  such  arrest,  a  preponderance  of  evidence 
of  the  guilt  of  the  arrested  person  sufficient:  Id. 

Firing  a  gun  in  order  ta  secure-  arrest  is  justifiable  only 
when  necessary:   Id. 

All  jurisdictional  facts  need  not  be  recited  in  warrant  of 
arrest:  Norman  v.  Zieber,  3  Or.  197. 

In  civil  cases,  jurisdiction  depends  on  the  affidavit,  which 
must  be  sufficient,  or  the  arrest  is  void:  Id. 

The  power  to  arrept  in  civil  cases  under  the  constitution 
and  the  statute  is  limited  to  cases  of  fraud  designated 
in  statute:  Id. 

Absconding  debtor  defined:  Id. 

Sheriff,  in  section  110,  Civil  Code  (sec.  112,  Hill's  A.  L.) 
relating  to  arrests  in  civil  cases,  includes  constables: 
Hume  V.  Norris,  5  Or.  478. 

It  is  the  duty  of  a  constable  on  redelivery  of  person  ar- 
rested, to  his  custody,  by  his  sureties,  to  acknowledge 
the  return  of  such  person  by  certificate  indorsed  on  a 
certified  copy  of  the  undertaking  of  bail:  Id. 

Prisoner  may  be  searched,  and  property  that  would  aid 
his  escape  be  taken  from  him:  Dahms  v.  Sears,  13  Or. 
47. 

But  such  property  is  in  custody  of  the  law,  and  is  not  lia- 
ble to  attachment:  Id. 
Assault.     Sec  Admiralty;  Assault  and  Battery;  Homicide. 

Assault  with  dangerous  weapon  is  felony,  and  a  private 
person  may  arrest:  Lander  v.  Miles,  3  Or.  35. 

Indictment  for  assault  with  intent  to  kill  is  sufficient  if 
in  statutory  language,  if  not  demurred  to:  State  v.  Doty, 
5  Or.  491. 


Assignments.  73 

Assault  (continued). 

Evidence  of  application  previously  made  by  prisoner  to 
have  a  justice  put  assaulted  party  under  bond  to  keep 
the  peace,  not  admi?sil)le  as  justification:  Id. 

Indictment  for  assaulting  an  oOicer,  under  section  677, 

Criminal  Code  (sec.  1900,  Hill's  A.  L.),  must  allege  that 
defendant  knew  the  person  assaulted  to  be  such  officer: 
State  V.  Smith,  11  Or.  205. 

Assault  with  dangerous  weapon  cannot  be  punished  by  a 
city,  under  a  power  in  its  charter  to  prevent  and  re- 
strain  riot,   noise,   disturbance,   etc.,   on    the   streets: 
Walsh  v.  City  of  Union,  13  Or.  589. 
Assault  and  Battery.     See  Admiralty;  Assault. 

Circuit  and  Justice's  Courts  have  concurrent  jurisdiction 
of  the  offense:   State  v.  Sly,  4  Or.  277. 

Conviction  before  recorder  for  fighting  and  disturbing 
peace  of  city,  not  a  bar  to  prosecution  in  Circuit  Court 

.  for  assault  and  battery:  Id. 

In  an  action  for  assault  and  battery  on  an  infant  by  one 
having  custody  of  him,  evidence  of  the  general  treat- 
ment of  the  infant  by  the  defendant  is  admissible  to 
show  or  to  rebut  malice:  Smith  v.  Harris,  7  Or.  76. 

Exemplary  damages  may  be  awarded  where  malice  is 
shown:  lleneky  v.  Smith,  10  Or.  349. 

Evidence  of  social  rank  and  pecuniary  circumstances  is 
admissible  in  such  case:  Id. 

Acquittal  of  assault  and  battery  is  no  bar  to  subsequent 
prosecution  for  kidnaping:  State  v.  Stewart,  11  Or.  52; 
S.  C,  11  Or.  238. 

Justification,  as  a  defense,  must  be  specially  pleaded  in 
an  action  for  damages  by  assault  and  battery:  Konigs- 
berger  v.  Harvey,  12  Or.  286. 
Assessment.     See   Corporations;    Municipal   Corporations; 

Taxation.  "'^~- 

Assessors.     See  Taxation. 

County  assessors  are  not  entitled  to  mileage:  Taylor  v. 
Umatilla  Co.,  6  Or.  401. 
Assignments.     See  Assignment  for   Benefit  of  Creditors; 
Trusts  and  Trustees;  Warehousemen. 

Right  to  file  mechanic's  lien  is  not  assignable;  otherwise, 
the  right  to  foreclose  after  the  lien  is  perfected:  Browia 
V.  Harper,  4  Or.  89. 


74  Assignments. 

Assignments  (continued). 

Right  of  obligee  of  a  bond  against  engaging  in  a  certain 
business  cannot  be  assigned  before  breach:  Hillman  v. 
Shannahan  and  Wadhams,  4  Or.  1G3. 

Assignment  of  mortgage  is  usually  affected  by  a  transfer 
of  the  note  or  bond:  Roberts  v.  Sutherlin,  4  Or.  219. 

Of  judgment,  does  not  carry  a  right  of  action  on  under- 
taking given  in  Justice's  Court  for  costs:  Dray  v.  Mayer, 
5  Or.  185. 

Suit  by  assignee  of  one  obligee  of  bond  is  not  a  bar  to  a 
suit  for  specific  performance  after  assignment  to  him  of 
the  rights  of  the  other  obligees:  Knott  v.  Stephens,  5 
Or.  235. 

Assignment  of  the  costs  and  disbursements  to  be  recov- 
ered, to  an  attorney,  before  judgment  but  after  verdict, 
is  valid,  and  will  prevent  a  right  to  set-off  attaching,  if 
such  right  would  otherwise  exist:  Ladd  and  Bush  v. 
McFadden  and  FergUKon,  9  Or.  180. 

Assignment  of  warehouse  receipt  transfers  the  property 
without  better  title  than  assignor  had:  Solomon  v. 
Bushnell,  11  Or.  277. 

Right  to  assign  ferry  franchise  and  right  of  private  par- 
ties to  object  to  the  validity  of  such  assignment:  IMohl- 
gomery  v.  Multnomah  R'y  Co.,  11  Or.  344;  Hackett  v. 
Wilson,  12  Or.  25;  Ilackett  v.  Multnomah  R'y  Co.,  12 
Or.  124. 

Claim  arising  from  tort  affecting  the  estate  of  a  person 
may  be  assigned,  but  not  one  arising  out  of  injury  to 
his  person:  Dahms  v.  Sears,  13  Or.  47. 

Assignee  of  a  distributive  share  of  an  estate  may  notify 
the  executor  of  the  assignment  to  him  from  the  devisee 
for  purpose  of  requiring  payment  to  him:  Harrington  v. 
La  Rocque,  13  Or.  344. 

But  cannot  take  a  decree  in  the  order  of  distribution  re- 
quiring executor  to  pay  to  him;  and  such  decree  is  void 
on  collateral  attack:  Id. 

Assignments  of  rights  of  various  parties  under  a  contract 
for  leasing  a  band  of  sheep  examined:  Beezley  v.  Cros- 
sen,  14  Or.  473. 

Right  of  adverse  party  to  be  examined  as  a  witness  when 
the  "assignor  of  a  thing  in  action  "  has  boon  so  exam- 
ined, under  statute:  Glasford  and  Shield  v.  Baker  and 
Cain,  1  W.  T.  224. 


Assignment  for  Benefit  of  Creditors.  75 

Assignments  (continued). 

Whoever  transfers  an  estate  is  an  assignor,  whetlier  the 
estate  be  real  or  personal  property,  assigned  by  deed  or 
parol:  Id. 

So  a  vendor  in  a  quitclaim  deed  is  an  assignor:  Id. 

Vendor  by  quitclaim  deed  of  a  mere  equitable  riglit  to 
take  water  from  the  land  of  another  is  an  assignor:  Id. 

Such  quitclaim  deed  amounts  to  a  mere  executory  con- 
tract to  convey,  and  the  vendor  is  an  assignor  of  a  right 
resting  in  contract  within  the  statute:  Id. 

Assignee  in  such  case  takes  no  better  right  than  assignor 
had,  and  which  is  a  mere  demand  for  possession  and 
enjo3'ment  of  the  water  right:  Id. 

Transfer  of  contract  to  furnish  supplies  to  the  United 
States,  being  forbidden  by  law,  is  void:  Turnbull  and 
Jones  V.  Farnsworth,  1  W.  T.  444. 

No  action  can  be  maintained  on  notes  given  in  payment 
for  such  assignment:  Id. 

Court  will  leave  all  parties  to  such  transaction  where  it 
finds  them:  Id. 
Assignment  for  Benefit  of  Creditors.     See  Insolvency. 

Assignment  preferring  unsecured  creditors  not  presumed 
fraudulent:  Kruse  v.  Prindle,  8  Or.  158. 

Burden  is  on  person  attacking  to  show  fraud  participated 
in  by  assignor  and  assignee:  Id. 

Assignment  ipso  facto  dissolves  attachment  from  the  date 
tiiereof,  and  the  assignee  need  not  intervene:  Tichenor 
V.  Coggins,  8  Or.  270. 

Assignee  is  not  a  purchaser  in  good  faith,  and  is  charge- 
able with  equities  that  could  be  sustained  against  the 
creditors  or  his  assignor:  Jacobs  Bros.  &  Co.  v.  Ervin, 
9  Or.  52. 

Assignee  cannot  impeach  transfer  made  fraudulently  by 
assignor  before  assignment,  valid  as  to  assignor^ut 
fraudulent  as  to  creditors:  Id. 

Has  power  to  resist  the  enforcement  of  a  lien  on  property 
in  his  hands  fraudulent  as  to  creditors,  though  valid  aa 
to  assignor:  Id. 

Assignment  by  one  formerly  a  partner  of,  and  now  own- 
ing stock  of,  firm  dissolved  by  consent,  carries  such 
goods  as  his  other  individual  assets,  and  not  as  partner- 
ship property:  McKinney  v.  Baker,  9  Or.  74. 


76  Assignment  for  Benefit  of  Creditors. 

Assignment  for  Benefit  of  Creditors  (continued). 

Recording  deed  of  assignment  not  essential  to  validity  of 
assignment  where  possession  accompanies  the  convey- 
ance of  personal  property:  Dawson  v.  Crossen,  10  Or. 
41. 

Failure  of  assignee  to  file  an  inventory  for  record  does 
not  render  assignment  void:  Id. 

Parol  transfer  of  goods  to  arrive  as  security  for  indebted- 
ness and  subsequent  advances  is  good  as  against 
assignee,  though  pledgee  does  not  gain  possession  until 
after  assignment:  Gammons  v. -Hoi man,  11  Or.  284. 

Assignee  takes  only  such  rights  as  his  assignor  held  at 
date  of  assignment:  Id. 

Circuit  Court  exercising  supervisory  control  under  act  of 
1878  (chap.  28,  Hill's  A.  L.)  exercises  a  statutory 
power,  and  its  jurisdiction  therein  is  inferior  and  lim- 
ited: In  re  Goldsmith,  12  Or.  414. 

No  appeal  lies  from  an  order  upon  a  petition  for  removal 
of  an  assignee:  Id. 

To  set  aside  a  general  assignment  as  fraudulent  at  credi- 
tors' suit,  creditor  must  first  obtain  a  lierj  by  judgment 
or  otherwise  on  the  property:  Dawson  v.  Coffey,  12  Or. ' 
518. 

Assignee  under  a  fraudulent  assignment  may  be  garnished: 
Id. 

When  equity  may  be  resorted  to  by  creditor  to  prevent 
fraud  and  misapplication  of  funds:  Id. 

Assignee  takes  the  legal  title  of  the  property  assigned:  Id. 

Agreement  by  assignees  that  one  of  their  numl)er  shall 
make  the  necessary  purchases  and  sales,  and  receive  a 
commission  thereon,  is  void:  Kinney  v.  Ileatley,  13 
Or.  ::55. 

Assignor  suing  assignees  for  an  accounting  must  tender 
balance  due  the  creditors,  or  he  is  not  entitled  to  costs: 
Id. 

But  in  such  case,  if  the  assignees  have  sufTicient  property 
to  satisfy  all  creditors,  they  are  not  entitled  to  attorneys' 
fees  beyond  the  statutory  costs:  Id. 

Mortgagee  of  chattels  may  maintain  trover  against  assignee 
for  conversion  of  the  property:  Case  T.  M.  Co.  v.  Camp- 
bell, 14  Or.  4G0. 

Assignee  is  entitled  to  possession  of  chattels  mortgaged, 


Attachments  77 

Assignment  for  Benefit  of  Creditors  (continued). 

but  cannot  dispose  of  them  contrary  to  the  stipulations 
of  llie  mortgage:  Id. 
Associations.     See  Voluntary  Associations. 
Assumpsit.     See   Contracts;    Evidence;    Money   Had   and 
Received. 
Is  an  action  on  the  case:  Baldro  v.  Tolmie,  1  Or.  176. 
Note  made  on  Sunday  is  void,  but  assuvipsit  lies  on  sub- 
sequent promise  to  pay:  Smith  v.  Case,  2  Or.  190. 
In  action  for  an  agreed  price,  proof  of  value  and  circum- 
stances, when  admissible:  Brown  v.  Cahalin,  3  Or.  45. 
Value  of  services  performed  under  a  contract  not  com- 
pleted, where  compliance  becomes  impracticable,  may 
be  recovered  where  contract  was  not  voluntarily  aban- 
doned: Steeples  v.  Newton,  7  Or.  110;  Tribou  v.  Strow- 
bridge,  7  Or.  156;  Todd  v.  Huntington,  13  Or.  9. 
Where  goods  are  sold  on  credit,  the  vendee  to  furnish 
secured  notes  in  payment,  and  he  fails  to  do  so,  action 
for  the  price  will  lie  before  the  term  of  credit  expires: 
Wheeler  v.  Harrah,  14  Or.  325. 
No  action  lies  to  recover  for  an  act  voluntarily  done  for 
the  benefit  of  another,  without  his  request,  unless  he 
subsequently  promises  to  pay  for  it:  Rohr  v.  Baker,  13 
Or.  350;  Glenn  v.  Savage,  14  Or.  567. 
Nor  to  recover  for  money  voluntarily  paid  upon  the  debt 
of  another  without  his  request:  Williams  &  Co.  v  Mil- 
ler &  Co.,  1  W.  T.  88. 
Common-law  count  of  indebitatus  asstimpsit  will,  under 
the  Code,  support  proof  of  special  or  implied  assumjmt: 
Seattle  &  W.  R.  R.  Co.  v.  Ah  Kow,  2  W.  T.  36. 
Attachments.     See  Garnishment. 

Attachment  act  of  1849  is  not  repealed  by  that  of  1857, 
except  so  far  as  they  conflict:  Winter  and  Lattimer  v. 
Norton,  1  Or.  42. 
Appearance  of  defendant  is  not  equivalent  to  surrendering 
himself  into  custody  to  release  an  attachment  lander  the 
attachment  law  of  1851:  Norton  v.  Winter,  ]  Or.  97. 
Bill  of  sale,  unaccompanied  by  delivery,  void  as  against 
attaching  creditors:  IMonroe  v.  Hussey  and  Burbank   1 
Or.  188. 
Property  attached  and  returned  on  giving  a  redelivery 
bond  cannot  be  reattached  on  other  claims:  Duncan  v 
Thomas,  1  Or.  314. 


78  Attachments. 

Attachments  (continued). 

Seizure  by  sheriff  after  accepting  such  bond  is  tantamount 
to  redelivery,  and  releases  bond:  Id. 

Attachment  issued  on  insufficient  affidavit  will  protect 
officer  serving,  but  not  plaintiff  or  the  justice  issuing 
the  same:  White  v.  Thompson,  3  Or.  115. 

Sufficiency  of  sureties  cannot  be  inquired  of  on  habeas 
corpus  proceedings:  Norman  v.  Zieber,  3  Or.  197. 

Sheriff  does  not  acquire  special  ownership  in  real  property 
by  attachment:  State  v.  Cornelius,  5  Or.  46. 

The  only  effect  of  such  levy  is  to  create  lien  in  favor  of 
attaching  creditor:  Id. 

The  officer  must  take  personal  property  in  his  custody,  or 
he  acquires  no  special  property  therein:  Schneider  v. 
Sears,  13  Or.  69. 

Subsequent  attachment  and  sale  of  the  property  by  the 
same  person  may  be  shown  by  him  in  mitigation  of 
damages  when  he  is  sued  for  seizing  them  under  a  void 
attachment:  Morrison  v.  Crawford,  7  Or.  472. 

Assignment,  from  its  date,  proprio  vigore  dissolves  attach- 
ment, and  assignee  need  not  intervene:  Tichenor  v.  Cog- 
gins,  8  Or.  270. 

Aflidavit  on  attachment  need  only  state  the  ultimate  facts 
showing  the  indebtedness  in  the  language  of  the  statute: 
Crawford  v.  Roberts,  8  Or.  324. 

Attachment  lien,  without  judgment  or  execution,  is  suffi- 
cient to  sustain  bill,  in  the  nature  of  a  creditor's  bill, 
in  equity,  to  set  aside  a  fraudulent  conveyance  or  de- 
cree and  sale  thereunder:  Bremer  &  Co.  v.  Flecken- 
stein  and  Mayer,  9  Or.  266;  Dawson  v.  Sims,  14  Or. 
561. 

Statute  requiring  the  judgment  to  order  the  attached 
property  sold  does  not  apply  where  the  property  has  al- 
ready been  sold  under  prior  lien,  and  the  proceeds  only 
remain:  Dawson  v.  Sims,  14  Or.  561. 

Attaching  creditor  stands  in  all  respects  as  a  bona  fide 
purchaser  as  to  notice. of  unrecorded  deed:  Boehrein- 
ger  v.  Creightqn,  10  Or.  42. 

So  as  to  personalty,  where  there  has  been  no  delivery  or 
change  of  possession  passing  the  property:  Gill  &  Co. 
V.  Frank,  12  Or.  507. 

Order  for  sale  of  property  attached,  made  under  section 


ATTACnMEXTS.  79 

Attachments  (continued). 

155  of  the  Code,  as  amended,  docs  not  bar  action  for 
its  recovery,  if  exempt,  and  duly  clninied  as  such  at 
the  time:  Berry  v.  Charlton,  10  Or.  362. 

Attaching  creditor  gains  no  right  the  defendant  had  not: 
0'.  R.  &  N.  Co.  V.  Gates,  10  Or.  514. 

Appeal  lies  from  an  order  dissolving  or  refusing  to  dis- 
solve attachment:  Sheppard  v.  Yocum,  11  Or.  234;  Suf- 
fern  v.  Chisholm,  1  W.  T.  486. 

Attachment  cannot  issue  in  an  action  for  tort:  Suffern  v. 
Chisholm,  1  W.  T.  486;  Suksdorff  v.  Bigham,  13  Or. 
369. 

Order  of  sale  of  attached  property,  under  act  of  1878, 
terminates  proceedings  against  garnishee  in  pending 
garnishment  proceedings,  except  as  a  means  of  dis- 
covery: Carter,  Rice,  &  Co.  v.  Koshland,  12  Or.  492. 

When  a  debtor  attempts  to  assign  his  projDerty  in  fraud 
of  creditors,  a  creditor  may  attach  the  same,  or  may 
garnish  the  assignee  if  delivery  has  been  made:  Daw- 
son V.  Coffey,  12  Or.  513. 

Money  taken  from  the  person  of  a  prisoner  by  the  sheriff 
is  not  subject  to  attachment:  Dahms  v.  Sears,  13  Or. 
47. 

Not  sufBcient  to  levy  on  a  safe  by  posting  a  copy  of  the 
writ  on  it;  must  be  taken  in  custody:  Schneider  v. 
Sears,  13  Or.  69. 

Attachment  proceedings  are  statutory,  and  must  be 
strictly  pursued:  Id. 

Sheriff  has  no  power  to  decide  that  his  levy  is  subordi- 
nate to  one  made  by  constable:  Id. 

Must  obtain  directions  from  the  court,  or  take  indemnity 
bond  before  releasing:  Id. 

Sheriff  is  entitled  to  necessary  keeper's  fees  for  care  of 
attached  property,  which  are  not  taxable  as  costs^  but 
are  a  charge  upon  the  assets:  Id. 

Property  attached  cannot  be  ordered  sold  when  judgment 
is  rendered,  if  attachment  has  previously  been  released: 
Ah  Lep  v.  Gong  Choy,  13  Or.  205. 

No  waiver  of  lien  by  not  describing  the  attached  property 
ordered  sold  in  the  judgment  entry:  Gerdes  v.  Scars, 
13  Or.  358. 

Duty  of  officer  to  levy  at  once  on  receiving  writ,  which  is 


80  Attachments. 

Attachments  (continued). 

fully  executed  by  attaching  sufficient  property  to  satisfy 
the  demand,  costs,  and  expenses:  Id. 

Officer  must  return  writ  as  soon  as  he  levies  on  sufficient 
property:  Id. 

It  is  unnecessary  that  writ  should  remain  in  hands  of 
officer  in  order  to  hold  the  property:  Id. 

Where  complaint  is  indefinite  as  to  whether  in  tort  or 
contract,  the  complaint  can  be  amended  so  as  to  sus- 
tain an  attachment  already  issued:  Suksdorff  v.  Big- 
ham,  13  Or.  369. 

Amendment  of  complaint  enlarging  the  demand  does  not 
render  the  attachment  void,  unless  done  fraudulently  or 
to  include  a  new  cause  of  action:  Id. 

In  pleading  a  right  claimed  under  attachment  proceed- 
ings, it  is  necessary  to  allege,  generally,  the  making  of 
the  affidavit  and  giving  of  the  undertaking:  Page  & 
Co.  V.  Smith,  13  Or.  410. 

Where  the  contract  was  not  "  made  in  this  state,"  there 
must  be  an  express  stipulation  that  it  is  to  be  "  payable 
in  this  state,"  or  attachment  does  not  lie:  Trabant  v. 
Rummell,  14  Or.  17. 

Semhle,  that  a  subsequent  promise  to  pay  in  the  state  a 
contract  not  made  or  payable  in  the  state  will  not  sup- 
port an  attachment,  where  the  suit  is  on  the  original 
contract:  Id. 

Where  under  a  contract  by  which  sheep  were  leased  in 
such  manner  that  the  lessor  and  lessee  were  tenants  in 
common,  held,  that  the  lessee  had  an  attachable  inter- 
est, tliough  there  were  certain  liens  thereon  for  advances: 
Beezley  v.  Crossen,  14  Or.  473. 

Plaintiff's  attorney  cannot  by  virtue  of  his  employment 
bind  plaintiff  for  the  expense  of  a  lock  to  secure  the 
door  of  a  building  containing  })roperty  attached:  Glenn 
V.  Savage,  14  Or.  567. 

Attachment  is  but  an  auxiliary  proceeding  under  the  laws 
of  Washington  Territory:  Nesqually  Mill  Co.  v.  Taylor, 
1  W.  T.  1. 

Defective  affidavit  for  attachment  not  cause  for  disturb- 
ing judgment:  Id. 

Such  defective  affidavit  may  be  cured  by  supplemental 
affidavit:  Id. 


Attorneys.  81 

Attachments  (continued). 

Erroneous  ruling  on  attachment  will  not  affect  a  judg- 
ment on  the  merits:  Williams  &  Co.  v.  Miller  &  Co.,  1 
W.  T.  88. 

Defendant  cannot  move  for  dissolution  of  attachment  un- 
til he  has  appeared  and  answered:  Rodolph  v.  Mayer^ 
1  W.  T.  133. 

Where  defendant  has  given  undertaking  for  release  of  the 
property,  and  judgment  goes  against  him,  it  may  be  en- 
tered against  his  sureties  also  to  the  extent  of  their 
bond:  Id. 

Complaint  being  improperly  dismissed,  attachment  fails^ 
but  is  restored  when  appeal  is  perfected  from  the  erro- 
neous decision:  Renton  v.  St.  Louis,  1  W.  T.  215. 

Transfer  of  the  attached  property  in  good  faith  during 
such  interval  is  valid:  Id. 

In  Washington  Territory,  property  vested  in  a  non-resi- 
dent administrator  is  liable  to  attachment  and  other 
process:  Barlow  and  Shepherd  v.  Coggan,  1  W.  T.  257. 

Order  dissolving  attachment  is  a  final  order  from  which 
writ  of  error  lies:  SufTern  v.  Chisholm,  1  W.  T.  486. 

But  such  order  made  by  the  judge  in  chambers  is  not  an 
order  of  the  court,  and,  being  void,  will  not  be  reviewed 
by  the  Supreme  Court:  Id. 

As  between  attaching  creditor  and  mortgagee  of  a  chattel, 
an  attachment  is  valid,  although  the  sureties  on  the  at- 
tachment bond  did  not  justify  as  to  their  financial  quali- 
fications: Baxter  v.  Smith,  2  W.  T.  97. 

Actual  prior  notice  of  unrecorded  chattel  mortgage  doea 
not  give  such  mortgage  precedence  over  the  attachment 
of  the  creditor  of  the  mortgagor:  Id. 
Attorneys.     Sec  District  Attorney. 

After  appearance  by  attorney,  defendant  cannot  make  his 
want  of  means  to  employ  an  attorney  an  excuse^for 
dereliction  in  not  setting  up  certain  facts  in  his  answer: 
Ilolladay  v.  Elliott,  3  Or.  340. 

A  stipulation  for  reasonable  attorneys'  fees  in  a  note  held 
to  mean  statutory  costs:  Gaston  v.  McLeran,  3  Or.  389. 

Payment  by  attorney  to  client  on  collections  made  pre- 
vents statute  of  limitations  from  running  against  client 
for  collections  retained  by  attorney:  Torrence  v.  Strong, 
4  Or.  39. 

Or.  Dig.— 6 


82  Attorneys. 

Attorneys  (continued). 

An  attorney  cannot  change  the  legal  effect  of  a  notice  of 
appeal  on  file  by  attaching  proof  of  service:  Briney  v. 
Starr,  6  Or.  207. 

County  commissioners  may  employ  attorney  to  represent 
the  county  in  suits:  Taylor  v.  Umatilla  Co.,  6  Or.  394. 

Board  of  school  land  commissioners  may  employ  counsel 
to  assist  in  prosecuting  foreclosure  suit,  but  the  district 
attorney  is  entitled  to  his  fees:  Claim  of  L.  B.  Ison,  6 
Or.  465. 

It  is  an  error  to  permit  an  attorney,  in  his  argument  to 
the  jury  against  objections,  to  assume  or  state  facts  not 
proved:  Tenny  v.  Mulvaney,  8  Or.  513. 

Assignment  of  costs  to,  after  verdict  and  before  judgment 
is  valid,  and  will  prevent  right  of  set-off  attaching  that 
otherwise  might  have  been  available:  Ladd  and  Bush 
V.  McFadden  and  Ferguson,  9  Or.  180. 

Attorney  for  defendant  in  criminal  case  need  not  be  pres- 
ent when  verdict  is  received:  State  v.  Lee  Ping  Bow, 

10  Or.  27. 

Remarks  to  jury  by  attorney,  if  improper,  must  be  ob- 
jected to  and  exception  saved  at  the  time:  Id.;  State 
V.  Abrams,  11  Or.  169. 

In  the  opening  statement  of  his  case  to  the  jury,  attorney 
may  detail  the  particular  facts,  and  need  not  be  con- 
fined to  a  general  statement  of  the  issues  in  the  plead- 
ings, but  the  court  may  prevent  abuse:  Long  and  Spaur 
v.  Lander,  10  Or.  175. 

Power  of  a  court  of  equity,  where  an  attorney  is  guilty  in 
the  case  of  negligence  or  misconduct  toward  his  client, 
to  grant  relief  in  a  summary  manner:  Branson  v.  Ore- 
gonian  R'y  Co.,  10  Or.  278. 

Mere  objection  and  exception  to  improper  remarks  of  dis- 
trict attorney,  without  requesting  court  to  act,  will  not 
avail:  State  v.  Anderson,  10  Or.  448;  State  v.  Abrams, 

11  Or.  169. 

Attorneys  are  entitled  to  commissions  on  collections  placed 
in  their  hands,  although  the  debtor  thereafter  pays  to 
the  creditor  direct:  Saubert  &  Co.  v.  Conley  and  Leas- 
ure,  10  Or.  488. 

Reasonable  attorney's  fees  may  be  stipulated  in  a  note: 
Peyser  v.  Cole,  11  Or.  39. 


Attorneys.  83 

Attorneys  (continued). 

Demand  of  payment  need  not  be  alleged  in  an  action  by 
attorney  to  recover  for  the  reasonable  value  of  his  ser- 
vices: Gibbs  V.  Davis,  11  Or.  288. 

Objectionable  statements  and  arguments  to  jury  must  be 
set  forth  in  a  bill  of  exceptions,  to  be  considered  on 
appeal:  State  v.  Drake,  11  Or.  396. 

Though  an  offense  charged  against  an  attorney  is  indict- 
able, a  court  need  not  await  indictment  and  conviction 
before  disbarring  him:  State  ex  rel.  McCormick  v.  Win- 
ton,  11  Or.  456. 

Answer  to  a  charge  against  attorney,  which,  if  verified, 
might  subject  the  accused  to  punishment  criminally, 
may  be  omitted  by  permission  of  the  court:  Id. 

Denial  of  reasoiiableness  of  attorney's  fees  alleged  in  ac- 
tion on  note  raises  an  issue  to  be  tried:  Bowles  v. 
Doble,  11  Or.  474. 

Under  existing  laws.  Supreme  Court  had  no  power  to  ad- 
mit women  to  practice:  In  re  Leonard,  12  Or.  93. 

Service  of  order  in  garnishment  proceedings  upon  attorney 
is  insuflBcient,  but  appearance  by  the  party  and  his  at- 
torney waives  the  defect:  Carter,  Rice,  &  Co.  v.  Kosh- 
land,  12  Or.  492. 

Notice  of  appearance  by  attorney  in  a  case  is  unnecessary, 
unless  the  right  to  appear  is  challenged  by  the  other 
party:  Id. 

Limiting  time  for  argument  to  jury  to  less  than  two  hours 
is  discretionary  with  thy  court:  Hurst  v.  Burnside,  12 
Or.  520. 

Assignment  to  an  attorney  of  a  right  of  action  to  enable 
him  to  sue  thereon,  he  stipulating  for  more  than  two 
thirds  thereof  as  compensation,  is  champertous  and  void: 
Dahms  v.  Sears,  13  Or.  47. 

Attorney  may  contract  for  percentage  or  contingent,  fee, 
but  cannot  purchase  a  claim  for  a  part  thereof  to  sue  in 
his  own  name:  Id. 

Notice  of  appeal  from  Justice's  Court  need  not  be  served 
on  attorney:  Byers  v.  Cook,  13  Or.  297. 

Attorney  in  Justice's  Court  acts  as  attorney  for  the  party, 
but  in  courts  of  record  appears  for  and  represents  him 
in  all  written  proceedings:  Id. 

When  attorney's  fees  are  recoverable  as  an  element  of 


84  Attorneys. 

Attorneys  (continued). 

damages  in  action  on  an  injunction  bond:  Olds  v.  Gary, 
13  Or.  362. 

Stipulation  in  a  mortgage  for  twenty  per  cent  as  attorney's 
fees  is  against  public  policy,  and  will  not  be  enforced, 
nor  will  the  court  in  such  case  allow  reasonable  fees: 
Balfour  v.  Davis,  14  Or.  47. 

Board  of  pilot  commissioners  may  employ  an  attorney  to 
advise  them  in  investigation  of  charges  against  a  pilot: 
Snow  V.  Reed,  14  Or.  342. 

An  attorney  cannot,  by  virtue  of  his  employment,  bind  his 
client  for  the  expense  of  a  lock  to  secure  a  building  con- 
taining property  attached  at  the  client's  suit:  Glenn  v. 
Savage,  14  Or.  567. 

Courts  have  power  to  restrain  counsel,  to  keep  them  within 
the  limits:  Leschi  v.  Territory,  1  W.  T.  13. 

Attorney  may,  by  virtue  of  general  power  as  attorney  on 
the  record,  discontinue  a  suit:  Simpson  v.  Brown  Bros. 
&  Co.,  1  W.  T.  247. 

Right  of  court  to  refuse  to  hear  attorney  representing 
parties  in  a  suit,  whose  interests  conflict,  argued,  but 
not  decided:  Id. 

Prosecuting  attorney,  after  making  application  for  man- 
date on  behalf  of  county,  against  county  commissioners, 
cannot  be  permitted  to  represent  both  parties  in  after 
proceedings,  though  they  so  desired :  Clarke  Co.  ex  rel. 
v.  Commissioners  of  Clarke  Co.,  1  W.  T.  250. 

Court  will  not  allow  issue  to  be  joined  where  both  plaintiff 
and  defendant  are  represented  by  same  attorney:  Id. 

Professional  confidence  once  reposed  cannot  be  divested 
by  expiration  of  the  employment:  Kickcls  v.  Griffin,  1 
W.  T.  374. 

Though  attorney  was  employed  specially  for  a  particular 
purpose,  he  cannot  after  its  accomplishment  appear  on 
the  other  side  in  the  case:  Id. 

Lapse  of  time  or  failure  to  raise  objection  at  once  to  his  so 
appearing  docs  not  waive  the  objection:  Id. 

Acceptance  of  the  fruits  of  a  decree  by  an  attorney  is  ac- 
ceptance by  the  client,  and  thereafter  party  is  estopped 
from  appealing:  Lyons  v.  Bain,  1  W.  T.  482. 

Receipt  by  attorney  to  clerk  for  money  paid  in  satisfaction 
of  a  decree  is  properly  a  part  of  the  record,  to  be  certified 
with  the  other  papers  in  the  case  on  appeal:  M. 


Bankruptcy:  85 

Attorneys  (continued). 

Allowance  of  attorney's  fees  for  foreclosure  of  mechanic's 
lien:  Seattle  &  W.  W.  R.  R.  Co.  v.  Ah  Kow,  2  W.  T.  36. 
United  States  attorney,  and  not  his  assistant,  must  be 
served  with  notice  of  suing  out  writ  of  error  in  criminal 
case  arising  under  United  States  laws:  Bennett  v.  United 
States,  2  \V.  T.  179. 
Attorneys'  Fees.     See  Attorneys. 
Autrefois  Convict.     See  Criminal  Law. 
Award.     See  Arbitration  and  Award. 
Bail.     See  Bonds  and  Undertakings;  Habeas  Corpus. 

It  is  the  duty  of  a  constable  to  acknowledge  the  return  of 
a  defendant  by  his  sureties  in  a  civil  action  upon  a  cer- 
tified copy  of  the  undertaking  of  bail:  Hume  v.  Norris, 
5  Or.  478. 
Bail  Bonds.     See  Bonds  and  Undertakings. 
Bailments.     See  Brokers;  Innkeepers;    Liens;   Warehouse- 
men. 
Vendor  of  timber  standing,  sold  to  be  delivered  in  logs  at 
vendee's  mill,  has  such  title  in  the  logs  before  delivery 
as  to  be  able  to  pledge  them:  Dean  v.  Lawham,  7  Or. 
422. 
Pledgee,  being  one  who  has  a  claim  on  the  logs  for  labor 
done  in  cutting  them,  has  right  to  possession  as  against 
vendee:  Id. 
On  satisfaction  of  his  claim,  the  pledgee  is  bound  to  de- 
liver possession  to  his  pledgor:  Id. 
Parol  pledge  of  goods  to  arrive,  good  as  against  assign- 
ment for  the  benefit  of  creditors  subsequently  made: 
Gammons  v.  Hoi  man,  11  Or.  284. 
Pledgor's  interest  in  goods  pledged  is  liable  to  execution: 

Williams  v.  Gallick,  11  Or.  337. 
The  pledgor  holds  the  legal  title  to  the  property  pledged, 
and  not  merely  an  equitable  interest:  Id. 
Banks. 

The  constitution,  article  11,  section  1,  does  nt)t  prohibit 
establi.shment  of  banks  not  having  the  privilege  of 
making  and  issuing  money  or  credits  to  circulate  as 
money:  State  v.  II.  S.  &  L.  A.,  8  Or.  396. 
Bankruptcy.  See  Assignment  for  Benefit  of  Creditors;  In- 
solvency. 
Creditor  not  made  party  to  bankrupt  proceedings  can 


86  Bankruptcy. 

Bankruptcy  (continued). 

subsequently  impeach  fraudulent  conveyance  made 
prior  to  such  proceedings,  and  kept  concealed  from  as- 
signee: Besser  v.  Joyce,  9  Or.  310. 
Proceedings  of  bankruptcy  against  mortgagor  after  fore- 
closure and  sale  do  not  affect  the  legal  title  of  the  prop- 
erty sold:  De  Lashmutt  v.  Sellwood,  10  Or.  319. 
Resident  creditor  cannot  attack  collaterally  a  discharge 
in  bankruptcy  for  fraud,  where  it  is  not  shown  that  he 
had  no  knowledge  or  notice  of  the  fraud  at  the  time  of 
the  discharge:  Rosenthal  v.  Schneider,  2  W.  T.  144. 

Bastards.     See  Parent  and  Child. 

Bequests.     See  Legacies  and  Legatees;  Wills. 

Bias.     See  Jury  and  Jury  Trial. 

Bill  of  Costs.     See  Costs  and  Disbursements. 

Bill  of  Exceptions.     See  Appeal  and  Error. 

Bill  of  Particulars. 

Omission  by  clerk  to  file, cannot  prejudice  parties'  rights: 

Cline  V.  Broy,  1  Or.  89. 
Witness  may  refresh  his  memory  by,  when  in  his  own 
handwriting:  Williams  &  Co.  v.  Miller  &  Co.,  1  W.  T. 
83. 

Bill  of  Sale. 

Unaccompanied  by  delivery  is  void  as  against  attaching 

creditors:  Monroe  v.  Hussey  and  Burbank,  1  Or.  188. 
May  be  shown  to  be  a  chattel  mortgage  by  parol:  Bartel 
v.  Lope,  6  Or.  321. 

Bill  of  Peace.     See  Cloud  on  Title;  Quieting  Title. 

Bills  and  Notes.  See  Answers  and  Defenses;  Attorneys; 
Complaints;  Interest;  Joint  and  Several  Liability;  Stat- 
ute of  Limitations;  Suretyship;  Usury. 

1.  In  General. 

2.  Indorsement  and  Transfer. 

3.  Guaranty  and  Surety. 

4.  Presentment,  Demand,  and  Notice. 

5.  Pleading,  Practice,  Evidence,  etc. 
1.    In  General. 

Note  made  on  Sunday  is  void,  but  subsequent  promise 
will  support  action  in  assumpsit:  Smith  v.  Case,  2  Or. 
190. 

A  non-negotiable  note  is  not  entitled  to  days  of  grace: 
McMullan  v.  Abbott,  1  Or.  258. 


Bills  and  Notes.  87 

Bills  and  Notes  (continued). 

Forbearance,  as  consideration,  must  have  been  forbear- 
ance on  a  demand  sustainable  in  law  or  equity:  0.  & 
C.  R.  R.  Co.  V.  Potter,  5  Or.  228. 

Orders  drawn  on  corporation  by  itself  payable  to  bearer 
are  in  effect  its  promissory  notes:  Fink  v.  Canyon  Road 
Co.,  5  Or.  301. 

Note  payable  to  "  treasurer  of  Philomath  College  "  inures 
to  the  benefit  of  the  corporation:  Philomath  College  v. 
Hartless,  6  Or.  158. 

Reservation  in  a  note,  rendering  the  time  of  payment  un- 
certain, makes  the  note  non-negotiable:  Barr  v.  Mitch- 
ell, 7  Or.  346. 

An  order  for  the  payment  of  a  certain  sum  in  lumber  is 
not  a  draft  or  bill  of  exchange:  Ilyland  v.  Blodgett,  9 
Or.  166. 

Payee,  by  making  demand  and  notice,  cannot  charge 
drawer,  and  the  doctrines  of  the  law  merchant  do  not 
apply:  Id. 

Checks  and  inland  bills  of  exchange  distinguished:  Haw- 
ley,  Dodd,  &  Co.  v.  Jette  and  Clark,  10  Or.  31. 

Stipulation  for  reasonable  attorneys'  fees  in  event  of  ac- 
tion thereon  is  valid  and  enforceable  against  the  maker: 
Peyser  v.  Cole,  11  Or.  39. 

Note  given  for  payment  of  interest  on  interest  previously 
due  is  valid:  Hathaway  v.  Meads,  11  Or.  66. 

Note  taken  by  resident  agent  of  foreign  insurance  com- 
pany which  has  not  complied  with  statute  of  Wash- 
ington Territory,  regulating  doing  of  business  by  such 
corporations,  is  void:  Hacheny  v.  Leary,  12  Or.  40. 

Signature  placed  on  a  note  by  one  having  authority  to 
sign  another's  name  makes  it  the  note  of  the  latter: 
State  V.  Lurch,  12  Or.  95. 

Note  for  the  payment  of  a  given  sum  of  money  at  affixed 
time,  payable  in  wheat  at  a  given  price  per  bushel  at  a 
place  stated,  is  payable  in  money  or  wheat  at -the  option 
of  the  maker:  Cook  v.  Blalock,  1  W.  T.  560. 

Written  instrument  constituting  both  a  note  and  a  mort- 
gage, the  holder  at  his  option  may  recover  money  judg- 
ment on  it  as  a  note,  or  proceed  to  foreclose:  Frank  v. 
Pickle,  2  W.  T.  55. 


88  Bills  and  Notes. 

Bills  and  Notes  (continued). 
2.   Indorsement  and  Transfer. 

After  assignment  of  the  note  by  the  payee,  a  written  in- 
dorsement by  the  maker  to  pay  higher  interest  is  void 
as  without  consideration,  and  does  not  operate  to  dis- 
charge indorsers:  Schlussel  and  Rosen  v.  Warren,  2 
Or.  17. 

One  who  adds  "security  "  after  his  indorsement  is  a  mere 
indorser,  and  not  a  guarantor  or  maker:  Kamm  v.  Hol- 
land, 2  Or.  59. 

Payee  indorsing  note  to  his  order  becomes  first  indorser 
without  regard  to  time  of  his  indorsement,  or  its  loca- 
tion on  tlie  note:  Cogswell  v.  Hayden,  5  Or.  22. 

Second  indorser  may  recover  from  first  indorser  money 
paid  on  the  note:  Id. 

The  rule  of  liability  is  not  altered  in  favor  of  accommoda- 
tion indorsers.  Id. 

Indorser  discharged  by  laches  of  holder  may  subsequently 
become  liable  by  promise  made,  knowing  his  discharge: 
Johnson  v.  Arrigoni,  5  Or.  485;  Smith  v.  Lownsdale,  6 
Or.  78. 

Payee  putting  his  name  on  the  face  of  the  note  under  that 
of  the  maker  on  transferring  the  note  becomes  indorser: 
Id. 

Indorser  taking  sufficient  security  to  protect  himself 
waives  his  right  to  proof  of  demand  and  notice:  Smith 
V.  Lownsdale,  6  Or.  78. 

Parties  may  make  separate  contract  governing  their  lia- 
bility, and  may  make  contract  as  for  indorsement  on 
separate  paper,  and  attach  same  to  the  note:  Moore  v. 
Miller,  6  Or.  254. 

Transfer  of  note  payable  to  order  without  indorsement 
passes  equitable  ownership,  and  entitles  the  holder  to 
sue  upon  it  in  his  own  name:  Id. 

Purchaser  before  maturity,  with  notice  of  fraud  in  the 
making,  takes  subject  to  equities  and  defenses  that 
would  exist  between  the  original  parties  to  the  note. 
De  Lashmutt  v.  Evor.«!on,  7  Or.  212. 

Such  purchaser  cannot  j)rotect  himself  I>y  way  of  estoppel 
against  the  maker,  with  admissions  of  the  latter  made 
witliout  knowledge  of  the  facts:  Id. 

One  who  signs  his  name  on  the  back  of  a  non-negotiable 


Bills  and  Notes.  89 

Bills  and  Notes  (continued). 

note   before   delivery  is   liable   as    a   maker:    Barr   v. 
Mitchell,  7  Or.  346. 

Parol  evidence  is  not  admissible  to  explain  or  limit  the 
effect  of  an  indorsement  in  blank:  Smith  v.  Caro  and 
Baum,  9  Or.  278. 

The  riglit  of  an  indorsee  with  notice  of  failure  of  consid- 
eration  cannot   be  superior   to    that   of  his   indorsor: 
Davis  v.  Wait,  12  Or.  425. 
3.  Guaranty  and  Surety. 

Signing  name  on  back  of  a  note  with  word  "  security  "  does 
not  make  signer  guarantor  or  maker:  Kamin  v.  Holland, 
2  Or.  59. 

Indorsee  of  note,  given  as  guaranty  in  consideration  of 
extension  of  time  to  maker  of  another  note  also  owned 
by  such  indorsee,  may  sue  on  former  note,  although  the 
latter  is  not  indorsed  to  him  by  the  payee:  Moore  v. 
Miller,  6  Or.  254. 

Judgment,  on  note,  against  principal,  is  no  bar  to  action 
against  principal  and  surety  on  another  note  given  as 
collateral  security  for  the  payment  of  the  first,  unless 
the  judgment  has  been  satisfied:  McCullough  v.  Hell- 
man,  8  Or.  191. 

Extension  to  principal  "until  after  harvest"  is  void  for 
uncertainty,  and  will  not  discharge  surety:  Findley  v. 
Hill,  8  Or.  247. 

Neglect  of  creditor  to  sue  principal  when  note  is  due,  as 
requested  by  the  surety,  does  not  discharge  the  surety, 
although  the  principal  afterwards  becomes  insolvent:  Id. 

Relinquishment  by  creditor  of  collateral  security  exoner- 
ates surety:  Brown  &  Co.  v.  Rathburn,  10  Or.  158. 

Such  defense  is  available  to  the  surety  in  an  action  at 
law  against  him  by  the  creditor  or  his  assignee  with 
knowledge  of  the  facts:  Id.  -,^ 

Surety  on  note  may  show  by  parol  that  he  is  such  surety: 
Baker  and  Smith  v.  Eglin,  11  Or.  333;  Harmon  v. 
Hale,  1  W.  T.  422. 

Such  showing  may  be  made  in  an  action  at  law:  Harmon 
V.  Hale,  1  W.  T.  422. 

Forbearance  to  sue  principal,  after  request  in  writing  by 
the  surety,  as  provided  by  statute,  discharges  surety: 
Id. 


90  Bills  and  Notes. 

Bills  and  Notes  (continued). 

Verbal  request  by  surety  is  not  sufficient  in  such  case* 

Id. 
Fraudulent  conduct  by  the  payee  that  misleads  surety 

and  prevents  his  obtaining  indemnity  will  discharge 

the  burety:  Id. 

4.  Presentment,  Demand,  and  Notice. 

One  who  adds  the  word  "  security  "  after  his  indorsement 
is  entitled  to  demand  and  notice  as  indorser:  Kamm  v. 
Holland,  2  Or.  59. 

Waiver  of  demand  and  notice  may  be  made  by  parol: 
Smith  V.  Lownsdale,  6  Or.  78. 

Indorser  taking  sufficient  security  to  protect  himself 
waives  proof  of  demand  and  notice:  Id. 

Language  of  waiver  is  to  be  strictly  construed  in  favor  of 
debtor:  Sprague  v.  Fletcher,  8  Or.  367. 

Waiver  of  notice  of  protest  for  non-payment  is  not  a 
waiver  of  demand  of  payment  from  maker:  Id. 

Indorsement  after  maturity  is  in  effect  drawing  new  note, 
and  demand  and  notice  of  non-payment  are  essential: 
Smith  V.  Caro  and  Baum,  9  Or.  278. 

Insolvency  of  payee  of  draft,  though  known,  does  not  ex- 
cuse presentment  for  payment  and  notice:  Hawley, 
Dodd,  &  Co.  V.  Jette  and  Clark,  10  Or.  31. 

Wlicre  one  of  two  parties,  makers  of  a  note,  dies  before 
maturity  of  tbe  note,  presentment  must  be  made  to  the 
survivor,  and  not  to  the  executor  of  the  deceased  part- 
ner: I^arlow  and  Shepherd  v.  Coggan,  1  W.  T.  257. 

5.  Pleading,  Practice,  Evidence,  etc. 

It  is  a  suflicient  allegation  to  show  that  plaintifif  is  owner 
of  the  note  to  allege  that  "  defendant  made  his  prom- 
issory note  in  writing,  and  thereby  promised  to  pay 
plaintiff"  :  Moss  v.  Cully,  1  Or.  147. 

Complaint  that  omits  to  show  that  the  note  is  due  is  in- 
suflicicnt:  Williams  v.  Knighton,  1  Or.  234. 

In  case  a  payment  is  made  on  note,  limitation  begins  to 
run  from  the  time  of  such  payment:  Partlow  v.  Singer, 
2  Or.  307,  Koslowski  v.  Yesler,  2  W.  T.  407. 

Partner  served,  sued  on  joint  note,  may  plead  misjoinder 
and  non-joinder:  Kamm  v.  Ilarker,  3  Or.  208. 

One  joint  maker  has  the  right  to  have  all  made  parties: 
Id'. 


Bills  and  Notes.  91 

Bills  and  Notes  (continued). 

Adding  "in  gold  coin"  to  note  is  a  material  alteration: 
Wells  V.  Wilson,  3  Or.  308. 

Payee  taking  with  notice  that  the  alteration  was  made 
without  the  consent  of  one  of  the  makers,  the  latter  is 
not  bound;  but  if  without  notice,  the  latter  is  bound 
upon  the  original  note:  Id. 

Reasonable  attorneys'  fees  in  note  construed  as  statutory 
fees  rather  than  usury:  Gaston  v.  McLeran,  3  Or.  380. 

Denial  that  D.  delivered  the  note  does  not  put  in  issue 
allegation  that  he  made,  executed,  and  delivered  it: 
Cogswell  V.  Hayden,  5  Or.  22. 

Denial  of  transfer  "for  value  received,"  and  denial  of  in- 
debtedness raise  no  issue:  Id. 

Note  given  on  expressed  consideration  of  transfer  of  a 
machine  at  maturity  to  maker:  held,  an  independent 
promise,  and  transfer  not  a  condition  precedent:  Haw- 
ley  V.  Bingham,  6  Or.  76. 

False  representations  to  constitute  defense  must  have  been 
relied  on  and  induced  the  execution  of  note:  Dunning 
V.  Cresson,  6  Or.  241. 

"When  no  time  of  payment  is  expressed  in  a  note,  it  is 
deemed  payable  immediately:  Dodd  v.  Denny,  6  Or. 
156. 

Giving  of  promissory  note  is  'prima  facie  evidence  of  set- 
tlement: Matasce  v.  Hughes,  7  Or.  39. 

Admission  in  pleadings  of  purchase  with  notice  of  defect- 
ive title  preclude  proof  to  the  contrary:  De  Laslimutt  v. 
Everson,  7  Or.  212. 

Person  not  in  possession  of  negotiable  paper  is  presumed 
to  have  no  authority  to  receive  payments,  but  the  pre- 
sumption is  disputable:  Swegle  v.  Wells,  7  Or.  222. 

Burden  is  on  plaintiff  suing  on  note  given  to  secure  the 
payment  of  another  note,  to  show  that  both  are  due^ud 
unpaid:  Moore  v.  Miller,  7  Or.  486. 

The  rule  inhibiting  parol  evidence  to  vary  writing  applies 
particularly  to  negotiable  paper:  Smith  v.  Caro  and 
Baum,  9  Or.  278. 

On  joint  and  several  note,  judgment  against  some  of 
defendants  is  no  bar  to  an  action  against  the  others: 
Sears  v.  McGrew,  10  Or.  48. 

Where  surety  answers  jointly  with  other  defendants,  and 


92  Bills  and  Notes. 

Bills  and  Notes  (continued). 

states  facts  constituting  a  defense  for  himself  alone,  ob- 
jection that  he  did  not  answer  separately  must  be  taken 
before  judgment:  Brown  &  Co.  v.  Rathburn,  10  Or.  158. 

Alteration  by  a  stranger,  with  intent  to  cancel  note, 
raises  no  presumption  of  payment:  Whitlock  v.  Man- 
ciet  and  Bigne,  10  Or.  166. 

Proof  that  indorser  was,  at  time  of  indorsing,  able  to  pay 
the  note,  is,  not  admissible  for  the  purpose  of  raising  a 
presumption  that  he  was  an  accommodation  indorser 
merely:  Id. 

Note  of  married  woman  is  not  absolutely  void;  but  if 
made  within  her  rights  as  a  married  woman  to  contract, 
this  must  bo  alleged  and  proved  afiirmatively,  in  reply 
to  the  defense  of  coverture:  Wells  v.  Applegate,  10  Or. 
519. 

Where,  on  the  face,  the  intention  to  hold  the  principal  or 
only  the  agent  signing  is  uncertain,  semhle  that  parol 
evidence  is  admissible  as  between  the  parties:  Guthrie 
V.  Imbrie,  12  Or.  182. 

Person  signing  his  name,  adding  simply  "  Pres."  or  ''  Sec," 
is  personally  liable:  Id. 

But  president  and  secretary  so  signing,  and  also  affixing 
the  corporate  seal  with  the  name  of  the  company  there- 
on, bind  the  company:  Id. 

Partial  failure  of  consideration  may  be  set  up  as  a  defense, 
and  defendant  may  recoup  his  damages,  though  they 
be  unliquidated:  Davis  v.  Wait,  12  Or.  425. 

Note  payable  at  particular  place,  payee  must  tender  at 
the  time  and  place,  and  must  deposit  and  keep  the  sum 
intact,  and  pay  it  into  court  when  sued:  Adams  v. 
Rutherford,  13  Or.  78. 

Semhle,  that  a  provision  in  a  note  for  forfeiture  for  failure 
to  pay  interest  at  the  time  and  place  is  governed  by 
law  of  contracts,  and  not  by  law  mercluint,  and  plaintiflf 
must  show  performance  on  his  part:  Id. 

Equity  will  not  decree  forfeiture  in  such  case,  where  the 
default  was  occasioned  by  the  plaintiff's  own  conduct: 
Id. 

Defense  of  failure  of  consideration  is  proved  by  establish- 
ing tliat  the  note  was  given  for  medical  services  upon 
agreement  that  unless  a  cure  was  eliected  there  should 


Board  op  Commissioners.  93 

Bills  and  Notes  (continued). 

be  no  pay,  and  that  the  plaintiff  falsely  represented 
that  he  had  cured  defendant,  and  thereby  induced  tlie 
execution  of  the  note:  Andros  v.  Childers,  14  Or.  446. 

Judgment  on  a  note  bearing  three  per  cent  interest  per 
month  cannot  be  rendered  for  more  than  the  legal  rate: 
Roeder,  Pcabody,  &  Co.  v.  Brown,  1  W.  T.  112. 

Note  for  one  thousand  dollars  currency,  accompanied  by 
written  contract,  that  if  paid  in  coin  ii  should  be  valued 
at  five  hundred  dollars,  cannot  bo  discharged  by  pay- 
ment of  five  hundred  dollars  in  currency:  Westbrook 
V.  Chapman,  1  W.  T.  227. 

Court  being  unable  to  conclude  with  certainty  what  was 
intended  by  a  clause  in  a  note  respecting  interest,  and 
it  being  repugnant  to  the  rest  of  the  note,  rejected  the 
same:  Hazard  v.  Maxon,  1  W.  T.  585. 

Quscrc,  whether  parol  evidence  is  admissible  to  prove,  as  a 
defense  to  a  note  secured  by  mortgage,  that  it  was  to 
be  payable  only  upon  the  execution  by  the  payee  of  a 
deed  to  the  premises  to  the  mortgagor:  Kenworthy  v. 
Merritt,  2  W.  T.  155. 

Purchaser  of  real  estate,  having  been  placed  in  possession, 
cannot  defend  against  the  notes  for  purchase  price  on 
the  ground  that  a  further  deed  had  not  been  executed 
as  agreed,  unless  he  first  tender  reconveyance:  Id. 

The  fact  that  a  trustee  of  a  corporation,  who  had  a  de- 
mand against  the  corporation,  was  present  at  a  meeting 
of  the  board  of  trustees,  which  gave  the  note  of  the  cor- 
poration to  him  in  payment,  does  not  of  itself  render  the 
note  invalid:  Budd  v.  W.  W.  P.  &  P.  Co.,  2  W.  T.  347. 

Controverted  allegation  of  the  giving  of  a  due  bill  for  value 
received  may  be  proved  by  parol  by  showing  that  the 
maker  had  given  the  same  in  payment  of  the  payee's 
interest  in  land  purchased  in  the  name  of  the  maker: 
Bigelow  V.  Scott,  2  W.  T.  378.  ^ 

Such  proof  is  not  within  the  statute  of  frauds  d;s  proving 
a  contract  for  sale  of  land  not  iu  writing:  Id. 

Payment  and  acceptance  of  interest  on  a  note  relieves  it 
from  the  statute  of  limitations:  Koslowski  v.  Yesler, 
2  W.  T.  407. 
Bills  of  Lading.     See  Common  Carriers. 
Bills  of  Reviev/.     See  Equity;  Judgments. 


94  Board  of  Commissioners. 

Board  of  Commissioners  (continued). 

Member  cannot  receive  compensation  for  extra  services 
above  the  statutory  compensation:  Territory  of  Oregon 
V.  King,  1  Or.  106. 
Where  statute  requires  board  to  keep  a  clerk,  and  does 
not  fix  his  salary,  he  is  entitled  to  reasonable  compen- 
sation: Territory  of  Oregon  v.  Norris,  1  Or.  107. 
Board  of  Commissioners  for  Sale  of  School  Lands. 

See  Public  Lands. 
Board  of  County  Commissioners.     See  Appeal  and  Er- 
ror; Bridges;  County  Court;  Ferries;  Highways;  Man- 
damus; Parties;  Paupers. 
Board  of  Equalization.     See  Taxation. 
Boats   and  Vessels.      See  Admiralty;  Liens;  Water  and 
Watercourses. 
The  owners  of  a  vessel  are  liable  for  injuries  to  a  by-standcr 
occasioned  by  the  careless  firing  of  a  signal  gun  by  their 
agent,  though  the  latter  does  not  strictly  follow  his  or- 
ders as  to  the  manner  of  firing:  Oliver  v.  North  Pacific 
Trans.  Co.,  3  Or.  84. 
A  revenue  cutter  of  the  United  States  is  not  subject  to 
process  to  enforce  mechanic's  lien  in  state  court:  Gold- 
smith V.  Revenue  Cutter,  6  Or.  250. 
Material-men,  furnishing  material  used  by  a  person  who 
has  a  contract  to  build  and  deliver  the  hull  of  a  boat, 
have  no  lien  on  the  boat  after  it  is  finished:  North  up  v. 
The  Pilot,  6  Or.  297. 
Boat   under  section  17,  chapter  13,  Miscellaneous  Laws 
(p.  1599,  Hill's  A.  L.),  is  a  complete  vessel,  not  a  hull 
merely:  Id. 
Passenger  may  go  ashore  at  points  where  steamboat  lands 
before  arriving  at  his  destination,  without  forfeiting  his 
right  to  safe  ingress  and  egress,  and  the  owners  of  boat 
are  liable  to  passenger  injured  in  so  landing:  Dice  v. 
W.  T.  <fe  L.  Co.,  8  Or.  60. 
Passenger  has  no  right  to  presume  ferry-boat  landed  where 
chain-guard  is  down,  when  personally  notified  otherwise: 
Davis  v.  O.  &  C.  R.  R.  Co.,  8  Or.  172. 
Incomplete  hull  or  lower  part  is  not  a  "vessel"  within 
section  773  of  the  Civil  Code  (sec.  783,  Hill's  A.  L): 
Yarnberg  v.  Watson,  13  Or.  11. 


Bonds  and  Undertakings.  95 

Boats  and  Vessels  (continued). 

Sale  of  pucli  incomplete  part  need  not  be  in  writing:  Id. 

Instruction  as.suniing  same  to  be  a  vessel,  and  not  leaving 
the  question  to  the  jury,  is  erroneous:  Id. 

Power  of  master  to  bind  owners  of  vessels:  Gove  v.  Moses, 
1  W.  T.  7. 

Steamer  is  not  liable  for  material  sold  to  one  who  has  a 
contract  to  put  in  machinery,  when  the  owner  and  his 
agents  did  not  authorize  the  using  of  such  material: 
Waddell  and  Miles  v.  Steamer  Daisy,  2  W.  T.  76. 

"Whether  a  contract  for  furnishing  material  for  a  vessel  is 
a  maritime  contract  depends  upon  whether  the  vessel 
was  so  far  finished  that  anything  further  done  upon  her 
would  be  in  its  nature  maritime:  Id. 
Bonds  and  Undertakings.  See  Appeal;  Ferries;  Liquor 
Laws;  Suretyship. 

1.  Generally. 

2.  Official  and  Statutory. 

3.  Actions  on. 
1.   Generally. 

Firm  name  signed  as  surety  binds  partner  signing  only, 
unless  signed  with  assent  of  firm:  Charman  and  War- 
ner V.  McLane,  1  Or.  339. 

Lock  bonds  redemption  act  of  1874  unconstitutional,  as 
impairing  obligations  of  contracts:  Goldsmith  v.  Brown, 
5  Or.  418. 

Bond  for  deed,  made  prior  to  September  27,  1850,  can  be 
enforced  against  obligee  after  he  obtains  donation  pat- 
ent: Parker  v.  Rogers,  8  Or.  183. 

Covenant  to  indemnify  persons  jointly  and  severally  liable 
on  a  bond  will  be  held  to  follow  the  bond  and  be  joint 
and  several  also:  Hughes  v.  Oregon  R'y  &  Nav.  Co.,  11 
Or.  437. 

Effect  of  bond  for  a  deed  is  to  transfer  the  equitable  title, 
and  vendor  holds  the  legal  title  merely  as  security  for 
the  sum  due:  Burkhart  v.  Howard,  14  Or.  39. 

Where  the  obligor  in  such  bond  subsequently  mortgages 
the  land,  the  mortgagee  takes  the  security  held  by  the 
former,  to  the  extent  of  the  mortgage:  Id. 

An  assignee,  after  maturity,of  the  vendee's  notes,  acquires 
no  more  interest  than  his  assignor,  although  the  mortgage 
was  not  recorded  until  after  the  note  was  assigned:  Id. 


96  BONT)S   XSD   UNDEKTAZDfGS. 

Bonds  and  Undertakings  (continued). 

Sureties   are  not  estopped  to  deny  liability  on  bond  in 

which  penal  sum  has  been  inserted  after  signing  and 

sealing,  and  after  passing  from  their  control,  though 

bond  was  accepted  without  knowledge  of  the  alteration: 

Walla  Walla  Co.  v.  Ping,  1  W.  T.  339. 
Alteration  after  signing  and  sealing,  before  delivery,  but 

after  passing  from  control  of  maker,  renders  bond  void: 

Id. 
Rule  like  that  of  caveat  emptor  applies  in  the  case  of  one 

who  accepts  a  bond;  he  must  assure  himself  of  its  valid- 
ity: Id. 
2.   Official  a^td  Statutory. 

Recognizance  to  appear  at  next  "term"  of  court  is  good, 

and  requires   appearance  at  next  "sitting":  Gird  v. 

State,  1  Or.  308. 
Redelivery   bond   under  statute   operates   to   absolutely 

discharge  the  property  from   attachment:  Duncan  v. 

Thomas,  1  Or.  314. 
County  commissioners  cannot  require  sheriff  to  give  new 

bond  on  pain  of  removal  from  office:  Ruckles  v.  State, 

1  Or.  347. 

After  approval  of  a  sheriff's  bond,  commissioners  cannot 
of  their  own  motion  disapprove  same,  and  thus  change 
the  vested  rights  of  parties  in  the  bond:  Wren  v.  Fargo, 

2  Or.  19. 

Upon  bail  bond  to  appear  at  certain  term,  sureties  are  not 
released  by  continuance  to  next  term:  Waldron  v.  Har- 
rison, 2  Or.  87. 

Executor  and  his  sureties  not  liable  for  the  misfeasance 
or  non-feasance  of  the  executor  until  after  default  of  the 
latter  is  determined  in  Probate  Court:  Hamlin  v.  Kin- 
ney, 2  Or.  91;  Adams  v.  Petrain,  11  Or.  304. 

Bonds  in  criminal  matters  are  statutory,  and  if  not  good 
under  statute,  cannot  be  held  good  as  common-law 
bonds:  Williams  v.  Shelby,  2  Or.  144. 

Statutory  undertaking  for  bail  is  not  a  recognizance,  but 
a  simple  promise  on  conditions:  State  v.  Hays,  2  Or. 
314;  Whitney  v.-Darrow,  5  Or.  442. 

When  the  undertaking  is  signed  and  justification  com- 
pleted, it  is  sufficient:  Id. 


Bonds  and  Undertakings.  97 

Bonds  and  Undertakings  (continued). 

Undertaking  upon  arrest  in  civil  action  is  not  a  bond  or 
writing  obligatory:  Paddock  v.  Hume,  6  Or.  82. 

Though  such  undertaking  is  not  required  bj  statute  to 
contain  a  promise  to  pay  any  judgment  that  the  obligee 
might  recover  against  the  principal,  such  promise,  if 
made,  is  binding,  where  want  of  consideration  is  not 
pleaded:  Id. 

Bond  not  authorized  by  statute  may  bind  as  a  common- 
law  bond:  Id. 

City  marshal  of  Oakland  is  not  required  under  the  charter 
to  file  an  official  undertaking:  Young  v.  Patton,  9  Or. 
195. 

Delivery  and  acceptance  of  official  bond  of  municipal 
officer  may  be  inferred  from  circumstances:  City  of 
Portland  v.  Besser,  10  Or.  242. 

So  where  the  city  was  in  possession  of  such  bond,  and  the 
officer  was  occupying  and  receiving  the  salary  of  the 
office,  a  deUvery  may  be  inferred:  Id. 

The  condition  of  a  bond  for  faithful  performance  of  duty 
is  performed  when  the  officer  discharges  his  duty  faith- 
fully and  honestly,  according  to  his  ability:  State  v. 
Chadwick,  10  Or.  46-5. 

He  is  held  liable  only  for  the  degree  of  skill  he  possesses: 
Id. 

Power  of  city  of  Portland  to  require  bond  from  applicant 
for  liquor  license ;  validity  of  the  provisions  respecting 
the  form  of  such  bond:  Matter  of  Schneider,  11  Or.  2SS. 

Replevin  bond  is  for  the  especial  purpose  of  indemnifying 
the  obligee  or  his  assignee  against  damages  adjudged 
in  the  particular  suit  in  which  it  is  given:  Bover  v. 
Fowler,  1  W.  T.  101. 

Official  bond  with  no  penal  sum  named  in  it,  but  left 
blank,  is  a  nullity:  Walla  Walla  Co.  v.  Ping,  1  W.  T. 
339.  "^ 

The  acceptance  of  a  void  official  bond,  by  a  public  officer, 
whether  judicial  or  ministerial,  is  the  same  in  effect  as 
an  acceptance  by  a  private  individual,  and  cannot  alter 
the  rules  governing  the  liabilitv  of  the  sureties  thereon- 
Id 
3.    Actions  on. 

It  is  not  a  sufficient  answer  in  an  action  on  a  forthconiin«' 
Ob.  Dig.— 7 


98  Bonds  and  Undertakings. 

Bonds  and  Undertakings  (continued). 

bond,  given  in  an  attachment  suit,  under  the  act  of  1851, 
to  say  that  the  defendants  in  the  attachment  "sur- 
rendered themselves  to  the  process  of  the  court  in  that 
suit":  Norton  v.  Winter,  1  Or.  97. 

Dissolution  of  injunction  operates  as  technical  breach  of 
injunction  bond:  Stone  v.  Cason,  1  Or.  100. 

Action  on  sheriff's  bond  for  not  returning  certified  tax 
list,  an  uncertified  tax  list  offered  as  proof  of  money 
had  and  received,  is  not  admissible:  Fargo  v.  County 
Commissioners,  1  Or.  262. 

Action  does  not  lie  on  redelivery  bond  when,  after  accept- 
ing the  bond,  the  sheriff  reattached  the  property: 
Duncan  v.  Thomas,  1  Or.  314. 

Such  reattachment  within  the  time  allowed  for  redelivery 
is  tantamount  to  redelivery,  and  discharges  the  under- 
taking: Id. 

In  an  action  on  undertaking  for  bail,  not  error  to  prove 
discharge  of  defendant  by  parol:  State  v.  Hays,  2  Or. 
314. 

Nor  to  permit  the  magistrate,  who  was  present,  to  append 
his  certificate,  during  the  trial,  to  the  undertaking:  Id. 

Assignee  of  bond  conditioned  against  obligor's  engaging 
in  a  certain  business  cannot  sue  for  breach ;  obligation 
is  personal,  and  until  breach  obligee  has  no  assignable 
right:  Hillman  v.  Shannahan  and  Wadhams,  4  Or.  163. 

District  attorney  may  sue  in  his  own  name  as  plaintiff  in 
action  on  bail  bond:  Hannah  v.  Wells,  4  Or.  249. 

Complaint  in  such  action  must  show  that  the  accused  was 
charged  with  a  crime  known  to  the  law:  Id. 

Where  undertaking  of  administrator  omitted  penal  sum, 
mistake  will  not  be  presumed  against  the  sureties: 
Evarts  v.  Steger,  5  Or.  147. 

Such  bond  is  void,  and  cannot  be  reformed  and  made 
operative  in  equity:  Evarts  v.  Steger,  6  Or.  55. 

The  right  of  action  on  undertaking  for  costs  in  a  Justice's 
Court  docs  not  pass  to  the  assignee  of  the  judgment  by 
virtue  of  the  assignment:  Dray  v.  Mayer,  5  Or.  185. 

The  word  "dollars"  may  be  supplied  in  an  action  on  a 
bail  bond  when  omitted  in  the  bond:  Whitney  v. 
Darrow,  5  Or.  442. 

The  surrender  of  the  principal  by  the  sureties  in  a  bond 


Bonds  and  Undertakings.  99 

Bonds  and  Undertakings  (continued). 

on  civil  arrest  does  not  exonerate  them  if  the  bond  is 
conditioned  to  pay  the  judgment:  Paddock  v.  Hume,  G 
Or.  82. 

A\Tiere  bond  by  county  clerk  is  lost  and  the  record  copy 
is  destroyed,  a  person  damaged  by  the  official  delin- 
quency of  the  officer  can  maintain  suit  in  equity  against 
the  sureties  to  establish  its  contents  by  parol  proof  and 
obtain  leave  to  sue  on  it:  Howe  v.  Taylor,  6  Or.  284; 
Howe  V.  Taylor,  9  Or.  288. 

In  such  case  equity  will  afford  complete  relief,  and  on 
proof  of  the  undertaking  will  decree  payment  by  the 
sureties  of  such  suras  as  they  are  found  liable  for:  Howe 
V.  Taylor,  9  Or.  288. 

Such  bond,  though  not  in  accordance  with  the  statute,  binds 
the  sureties:  Id. 

Action  on  an  official  undertaking  is  not  an  action  to  re- 
cover fines  and  forfeitures  under  statute  allowing  district 
attorney  ten  percentum:  Claim  of  Tson,  6  Or.  4G9. 

What  is  sufficient  complaint  in  action  on  undertaking  in 
replevin:  Cooper  v.  McGrew,  8  Or.  327. 

When  the  original  bond  of  county  clerk  is  lost  and  the 
record  destroyed,  parol  evidence  is  admissible  to  prove 
the  contents  and  the  names  of  sureties:  Howe  v.  Taylor, 
{)  Or.  288. 

In  the  absence  of  evidence  to  the  contrary,  it  is  presumed 
such  bond  was  in  compliance  with  the  law:  Id. 

Both  original  and  copy  being  lost,  evidence  of  the  contents 
of  the  cop}'-  is  admissible:  Id. 

Testimony  of  persons  alleged  to  be  sureties,  that  they  have 
no  recollection  of  signing,  is  to  be  given  little  weight  as 
against  positive  evidence:  Id. 

False  representations,  but  not  known  to  be  false  by  the 
party  making  them,  inducing  the  execution  of  a  bond, 
afford  no  defense  to  an  action  at  law  on  the  bond :  Smith 
v.  Cox,  0  Or.  327. 

On  appeal  from  order  of  confirmation  of  judicial  sale,  an 
undertaking  to  pay  value  of  the  use  of  the  premises 
pending  appeal  is  void,  and  does  not  bind  the  sureties: 
Bank  of  British  Columbia  v.  Harlow  and  Page,  9  Or.  338. 

Such  bond,  not  being  provided  for  by  law]  gives  appellant 
no  right  of  possession:  Id. 


100  Bonds  and  Undertakings. 

Bonds  and  Undertakings  (continued). 

In  the  absence  of  malice  and  want  of  probable  cause,  a 
person  damaged  by  an  injunction  is  confined  to  his 
remedy  on  the  injunction  bond:  Ruble  v.  Coyote  G.  & 
S.  M.  Co.,  10  Or.  39. 

Remedy  of  person  damaged  by  injunction  must  be  found 
at  law,  and  not  in  equity:  Id. 

Action  on  bond  of  sheriff,  proper  remedy  for  damages  by 
his  failure  to  levy:  Habersham  v.  Sears,  11  Or.  431. 

Covenant  of  indemnity  against  "actions  brought  in  accord- 
ance with"  a  certain  bond,  construed  to  include  all 
actions  whether  well  or  ill  founded:  Hughes  v.  Or.  R'y 
&  Nav.  Co.,  11  Or.  437. 

In  replevin,  sureties  are  liable  on  the  immediate  delivery 
bond,  though  the  indorsement  on  the  affidavit  directing 
the  sheriff  is  irregular:  Carlon  v.  Dixon,  12  Or.  144. 

In  an  action  on  injunction  bond,  complaint  must  allege 
that  the  injunction  was  wrongful  and  without  probable 
cause:  Olds  v.  Cary,  13  Or.  362. 

But  answering  over  after  demurrer  to  such  defective  com- 
plaint waives  the  defect:  Id. 

When  attorneys*  fees  expended  in  defending  in  the  in- 
junction suit  are  recoverable  as  an  element  of  damages 
in  action  on  injunction  bond:  Id. 

The  sureties  on  a  replevin  bond  are  liable  for  costs  of  the 
action  upon  judgment  adverse  to  plaintiff:  Carlon  v 
Dixon,  14  Or.  293. 

So  they  are  liable  for  interest  for  the  delay  in  payment 
by  way  of  damages  for  the  breach:  Id. 

The  sureties  are  liable  to  the  amount  of  the  penalty  only, 
and  costs:  Id. 

In  an  action  on  a  bail  bond,  the  record  held  to  sufficiently 
import  that  the  case  came  on  for  trial  upon  the  indict- 
ment, and  defendant  made  default:  Clifford  v.  Mars- 
ton,  14  Or.  426. 

In  Oregon,  the  journal  of  the  court  is  evidence  against 
the  sureties  to  prpve  the  default  of  the  principal  upon 
the  bail  bond:  Id. 

The  old  rule  of  trying  the  issues  on  a  replevin  bon^  stated: 
Boyer  v.  Fowler,  1  W.  T.  101. 

The  suit  in  which  the  bond  was  given  having  been  dis- 
missed, the  plaintiff  is  concluded   from  maintaining 


Boundaries.  101 

Bonds  and  Undertakings  (continued). 

action  on   the  replevin  bond,  there  being  no  judgment 
in  favor  of  the  obligee:  Boyer  v.  Fowler,  1  W.  T.  101  j 
contra,  Meigs  v.  Keach,  1  W.  T.  305. 
Books  of  Account.     See  Evidence. 
Booms.     See  Water  and  Watercourses. 

Boundaries.     See  Adverse  Possession;  Deeds;  Fences;  Pub- 
lic Lands. 

Boundaries  to  public  land  claims  may  be  investigated  by 
courts  incidentally  to  the  exercise  of  other  powers,  al- 
though the  title  is  still  in  the  United  States:  Wood- 
sides  v.  Rickey,  1  Or.  108;  Lee  v.  Simonds,  1  Or.  158; 
Colwell  V.  Smith,  1  W.  T.  92. 

Owners  of  party-wall  are  not  tenants  in  common,  but 
each  has  a  right  to  use:  Burton  v.  Moffitt,  3  Or.  29. 

Iron  pilaster  erected  beyond  center  line  of  party-wall  by 
one  party  is  an  encroachment:  Id. 

Injunction  to  remove  same  denied  in  exercise  of  discre- 
tion in  this  case:  Id. 

So,  where  wall  was  so  built  as  to  diminish  width  of  party's 
premises  above  second  story:  Id. 

Neither  railroad  company  nor  adjoining  owner  is  required 
by  law  to  fence  boundary  between  them:  Oregon  Cen- 
tral R.  R.  Co.  V.  Wait,  3  Or.  91. 

Ascertained  boundaries  and  monuments  control  incon- 
sistent lines,  angles,  or  surfaces:  Lewis  v.  Lewis,  4  Or. 
177;  Goodman  v.  Myrick,  5  Or.  65. 

Locality  of  lost  stake  may  be  ascertained  in  law  as  well 
as  in  equity:  Goodman  v.  Myrick,  5  Or.  65. 

In  government  surveys  the  line  actually  run  is  the  true 
line:  Goodwin  v.  Myrick,  5  Or.  65;  Weiss  v.  Oregon 
Iron  etc.  Co.,  13  Or.  496. 

When  parol  evidence  is  admissible  to  fix  or  locate-boun- 
daries  and  monuments:  Raymond  v.  Coffey,  5  Or.  132; 
Boehreinger  v.  Creighton,  10  Or.  42;  Goddard  v.  Parker, 
10  Or.  102. 

Metes  and  bounds  will  control  quantity,  though  not  cor- 
rectly stated  in  the  deed:  Id. 

The  United  States  can  grant  only  to  the  meander  line  of 
high  tide,  and  not  the  tide  lands  below:  Hinman  v. 
Warren,  6  Or.  408;  Parker  v.  Taylor,  7  Or.  435. 

The  actual  stream,  and  not  the  meandered  line  as  im- 


102  Boundaries. 

Boundaries  (continued). 

properly  located  by  government  survey,  is  the  boundary 
of  a  riparian  owner  on  a  navigable  stream:  Minto  v. 
Delaney,  7  Or,  337;  Weiss  v.  Oregon  Iron  etc.  Co.,  13 
Or.  496. 

Party  entering  under  color  of  title  is  presumed  to  occupy 
according  to  the  boundaries  in  his  deed:  Phillippi  v. 
Thompson,  8  Or.  428;  Joy  v.  Stump,  14  Or.  361. 

Owner  of  a  tract  described  by  metes  and  bounds  acquires 
no  title  to  the  soil  of  a  street,  subsequently  dedicated 
by  his  grantor,  adjoining  his  tract:  Knott  Brothers  v. 
JefiFerson  Street  Ferry  Co.,  9  Or.  530. 

Parol  evidence  to  locate  a  stake  mentioned  as  a  starting- 
point  in  a  deed,  admissible:  Boehreinger  v.  Creighton, 
10  Or.  42. 

Boundary  of  lot,  described  "  as  laid  out "  by  A,  must  be 
proved  as  matter  of  essential  description:  Goddard  v. 
Parker,  10  Or.  102. 

Common  reputation  is  competent  evidence  of  location  of 
boundary, under  the  statute:  Id. 

Boundary  established  by  common  reputation  is  not  dis- 
proved by  proof  of  expression  of  opinion  by  former 
owner  contrary  thereto:  Id. 

Defective  description  in  a  complaint,  by  natural  objects, 
apparently  including  a  tract  of  land,  cannot  be  reached 
by  demurrer:  Ladd  and  Tilton  v.  INlason,  10  Or.  308. 

Agreements  fixing  boundary  line  in  dispute  will  not  be 
upheld  or  enforced,  unless  the  true  line  was  unknown 
and  uncertain:  Lennox  v.  Hendricks,  11  Or.  33. 

Such  parol  agreements  are  held  invalid  as  against  statute 
of  frauds,  where  the  element  of  uncertainty  does  not  ex- 
ist: Id. 

The  first  point  reached  by  high  water  in  ordinary  seasons 
is  the  true  meander  line  and  boundary  of  the  United 
States:  Johnson  v.  Knott,  13  Or.  308. 

Opinion  of  a  witness  as  to  whether  a  piece  of  land  is 
within  a  certain  donation  claim  is  inadmissible:  Id. 

Description  in  an  order  of  confirmation  of  sale  on  execu- 
tion, without  describing  boundaries,  of  a  part  of  a  cer- 
tain donation  claim,  is  insufficient  to  identify  the  land: 
Swift  V.  Mulkey,  14  Or.  59. 

Boundary  described  as  the  meander  line  of  a  stream  fol- 


Bridges.  103 

Boundaries  (continued). 

lows  the  sinuosities  of  the  stream,  though  courses  be  also 
given  which  indicate  straight  lines:  Turner  v.  Parker, 
14  Or.  340. 

Possessory  rights  to  public  lands  before  patent  will  be 
protected  by  the  courts,  though  questions  of  conflicting 
boundaries  and  priority  of  settlement  will  be  left  to  the 
land  department:  Colwell  v.  Smith,  1  W.  T.  92. 

Ordinance  having  moved  the  lines  and  corners  of  a  block 
seven  feet  eastward,  all  lines  and  corners  mentioned  in 
subsequent  deeds  will  be  considered  those  fixed  by  the 
ordinance,  and  not  as  they  formerly  existed:  Bur- 
meister  v.  Howard,  1  W.  T.  207. 

Ordinance  has  the  force  of  statute,  and  parties  are  charged 
with  notice  thereof,  and  their  boundaries  under  their 
deeds  are  subject  thereto:  Id. 

Boundaries  as  described  in  notice  filed  in  surveyor-gen- 
eral's office,  and  approved  by  the  executive  department 
of  the  government,  will  be  upheld  by  the  courts,  though 
loose  and  somewhat  indefinite:  Shockley  v.  Brown,  1 
W.  T.  463. 
Breach  of  Promise.     See  Marriage. 

Bribery.  Promise  by  candidate  to  pay  into  county  treasury 
part  of  his  salary  is  not  such  an  offer  as  to  disqualify, 
unless  shown  to  benefit  those  to  whom  offered:  State  v. 
Church,  5  Or.  375. 

Complaint  to  try  title  to  office  for  bribery  of  voters  must 
show  the  promise  to  be  to  benefit  voters:  Id. 
Bridges.     See  Highways. 

County  liable  under  section  347  of  Code  (sec.  350,  Hill's 
A.  L.),  for  injury  occasioned  by  defects  in:  McCalla  v. 
Multnomah  Co.,  3  Or.  424. 

Road  supervisor,  agent  of  county,  is  liable  for  his  neglect 
to  repair:  Heilner  v.  Union  Co.,  7  Or.  83.  ^~ 

Repairs  to,  by  county,  must  be  let  to  lowest  bidder  except 
in  emergency,  when  county  judge  may  order:  Spring- 
field Milling  Co.  v.  Lane  Co.,  5  Or.  265. 

A  person  who  repairs  a  county  bridge  without  authority 
cannot  hold  county  liable  for  compensation:  Id. 

In  action  against  the  county  for  injury  by  defective  bridge, 
notice  of  the  defect  must  be  alleged:  Heilner  v.  Union 
Co.,  7  Or.  83. 

The  facts  constituting  the  negligence  must  be  alleged:  Id. 


104  Brokers. 

Brokers.     See  Bailments. 

One  who  is  a  salaried  agent,  not  acting  for  a  fee  or  rate 
per  cent  for  others,  is  not  a  broker:  City  of  Portland  v. 
O'Neill,  1  Or.  218. 
City  of  Portland  has  no  power  to  license  such  persons  as 

brokers:  Id. 
A  broker  loaning  money  on  inadequate  security  is  released 
from  liability  therefor,  by  his  principal  signing  a  com- 
position agreement  releasing  the  borrower:  Nicolai  v. 
Lyon,  8  Or.  56. 
Real  estate  agent  earns  his  commission  when  he  brings 
buyer  and  seller  together,  although  the  seller  then  re- 
fuses to  sell:  Fisk  v.  Henarie,  13  Or.  156. 
Seller  requesting  broker  by  letter  to  sell  at  certain  terms, 
formal  answer  is  not  necessary  to  complete  contract; 
but  when  buyer  is  found  and  produced,  commission  is 
earned:  Id. 

Burden  of  Proof.     See  Evidence. 

Canals.     See  Bonds;  Eminent  Domain. 

Capital  Stock.     See  Corporations. 

Carriers.     See  Common  Carriers. 

Cattle.     See  Animals. 

Cause  of  Action.     See  Complaints;  Pleadings. 

Caveat  Emptor.     See  Sales. 

Centennial  Commission. 

Du*;-"  of  state  treasurer  to  set  aside  a  fund  for  payment  of 
warrants,  under  act  of  1872,  providing  for  the  appoint- 
ment of  commissioners  and  the  payment  of  expenses: 
Simon  v.  Brown,  5  Or.  285. 
Warrants  under  the  act  cannot  be  paid  from  funds  pro- 
vided by  general  appropriation  act  of  1874:  Id. 

Certificates.  See  Acknowledgments;  Appeal  and  Error; 
Attorneys;  Depositions;  Elections;  Evidence;  Public 
Lands;  Reference;  Taxation. 

Certiorari.     See  Review,  Writ  of. 

Cestui  que  Trust.     See  Trusts  and  Trustees. 

Challenges.     See  Jury  and  Jury  Trial. 

Champerty. 

Assignment  to  an  attorney  of  a  right  of  action  to  enable 
him  to  sue  in  his  own  name,  stipulating  for  two  thirds 
thereof  as  compensation,  is  champertous  and  void: 
Dahms  v.  Sears,  13  Or.  47. 


Chattel  Mortgages.  105 

Champerty  (continued). 

Attorney  may  contract  for  percentage  or  contingent  fee, 
but  cannot  buy  a  claim  for  a  part  thereof  to  enable  him 
to  sue  in  his  own  name:  Id. 
Chattel  Mortgages. 

Unless  recorded  or  accompanied  by  delivery,  void  against 
subsequent  attachment:    Monroe  v.  llussey  and  Bur- 
bank,  1  Or.  188. 
Simply  create  lien,  and  do  not  vest  title  until  foreclosure: 
Chapman  v.  State,  5  Or.  432;  Knowles  v.  Herbert,  11 
Or.  54;  Knowles  v.  Herbert,  11  Or.  240. 
But  after  condition  broken,  the  right  of  the  mortgagee  is 
more  than  a  mere  lien;   it  is  a  quahfied  ownership: 
Case  T.  M.  Co.  v.  Campbell,  14  Or.  460. 
A  forfeiture  of  tlie  debt  for  usury  carries  the  mortgage 

security:  Chapman  v.  State,  5  Or.  432. 
President  of  railroad  company  cannot  mortgage  locomo- 
tive under  corporate  seal  by  virtue  of  his  general  pow- 
ers: Luce  v.  Isthmus  Transit  R'y  Co.,  6  Or.  125. 
Bill  of  sale  may  be  shown  by  parol  to  be  a  mortgage,  ia 
action   by  an  administrator  to  recover   property  held 
under  bill  of  sale  from  intestate:  Bartel  v.  Lope,  6  Or. 
321. 
Tender  in  writing,  if  refused,  will  discharge  lien  of  chattel 

mortgage:  Id. 
When  it  appears  on  the  face  of  the  mortgage  or  otherwise 
that  the  mortgagor  has  been  given  unlimited  power  of 
sale,  the  mortgage  is  void  as  to  third  persons:  Orion  v. 
Orton,  7  Or.  478;  Jacobs  Brothers  &  Co.  v.  Ervin,  9  Or. 
52;   Bremer  &  Co.  v.  Fleckenstein  and  Mayer,  9  Or. 
266;  Wineburgh  v.  Schaer,  2  W.  T.  328. 
In  such  case,  there  being  no  lien  as  against  innocent  pur- 
chasers, there  is  no  mortgage:  Id. 
Either  party  may  insist  on  foreclosure  in  the  manner  pro- 
vided in  the  mortgage:  Jacobs  v.  McCaIley,*8  Or.  124. 
But  if  delivery  of  possession  to  mortgagee  is  necessary  by 
tlie  terms  of  the  mortgage,  the  mortgagor  must  comply, 
or  he  waives  his  right  to  a  strict  performance:   Id.; 
Sears  v.  Abrams,  10  Or.  499. 
Mortgagor  may  sell  or  assign  the  property  subject  to  the 

lien  of  the  mortgage:  Id. 
Agreement  subsequent  to  the  mortgage  by  which  mort- 


106  Chattel  Mortgages. 

Chattel  Mortgages  (continued). 

gagee  took  possession  of  logs  mortgaged,  sawing  them 
into  lumber  at  mortgagor's  mill,  and  applying  proceeds 
from  sale  thereof  to  debt,  construed:  Friendly  v.  Mc- 
Cullough,  9  Or.  109. 

Mortgagee  was  allowed  to  deduct  expense  of  repairing 
mill,  and  his  agreed  compensation  for  sale  of  lumber: 
Id. 

Where  no  equities  intervene,  mortgagee  may  hold  the 
mortgaged  property  in  his  hands,,  after  payment  of  his 
mortgage,  for  payment  for  subsequent  advances  on  the 
credit  of  the  property:  Id. 

Chattel  mortgage  is  a  good  consideration  for  an  agree- 
ment to  make  future  advances:  McFadden  v.  Friendly, 
9  Or.  222. 

Decree  and  sale  on  foreclosure  may  be  set  aside  on  the 
ground  of  fraud,  by  creditor  having  a  lien  by  attach- 
ment, in  equity,  without  first  obtaining  judgment  and 
execution:  Bremer  &  Co.  v.  Fleckenstein  and  Mayer, 
9  Or.  266. 

Fraudulent  agreement  between  the  parties  for  unlimited 
power  of  sale  by  the  mortgagor  may  be  shown  by  ex- 
trinsic evidence:  Id. 

In  a  suit  to  foreclose  against  persons  to  whom  the  mort- 
gaged property  has  been  transferred,  where  it  is  alleged 
that  the  property  has  been  converted,  a  personal  decree 
for  a  greater  amount  than  the  value  of  the  property 
converted  cannot  be  given:  Sears  v.  Abrams,  10  Or.  499. 

Lien  on  wheat  is  not  lost  by  storing  in  warehouse  and 
mingling  with  other  wheat  of  same  quality:  Id. 

Mortgagee  has  no  right,  before  foreclosure,  which  is  sub- 
ject to  execution  and  garnishment:  Knowles  v.  Herbert, 
11  Or.  54;  S.  C,  11  Or.  240. 

Bill  of  sale  intended  as  a  chattel  mortgage,  and  so  shown 
by  parol,  is  such,  not  only  as  to  the  parties,  but  as  to 
third  parties  having  notice:  Nicklin  v.  Betts  Spring  Co., 
11  Or.  406. 

Such  bill  of  sale,  registered  as  a  chattel  mortgage,  is 
notice  to  third  parties:  Id. 

Chattel  mortgage  to  secure  future  advances  is  valid:  Id. 

The  lien  of  such  mortgage  attaches  at  the  time  of  the 
advances,  and  not  at  date  of  the  mortgage:  Id. 


Checes.  107 

Chattel  Mortgages  (continued). 

Mortgagee  may  maintain  trover  against  one  who  wrong- 
fully interferes  with  the  property:  Case  T.  M.  Co,  v. 
Campbell,  14  Or.  400. 

Assignee  of  the  mortgagor  cannot  dispose  of  the  property 
contrary  to  the  terms  of  the  mortgage:  Id. 

Elder  mortgage,  not  renewed  as  required  by  law  prior  to 
the  expiration  of  one  year  from  the  time  of  filing  thereof, 
is  not  evidence  of  prior  right,  as  against  subsequent 
mortgage,  unless  accompanied  by  proof  that  the  latter 
is  fraudulent:  Id. 

In  an  action  of  trover  by  mortgagee  against  assignee, 
claiming  the  property,  it  is  not  necessary  to-show  the 
amount  due,  but  simply  the  conversion  and  qualified 
ownership:  Id. 

Attachment,  otherwise  regular,  is  valid  as  against  mort- 
gagee of  chattels,  though  the  sureties  on  the  attach- 
ment bond  did  not  quakfy  as  to  their  financial  respon- 
sibility: Baxter  v.  Smith,  2  W.  T.  97. 

Actual  prior  notice  of  unrecorded  chattel  mortgage  does 
not  give  it  precedence  over  attachment:  Id. 

Statutes  respecting  chattel  mortgages  and  providing  for 
registration  thereof  do  not  alter  the  rule  of  common 
law  that  mortgages  on  stocks  of  merchandise  and  sale 
by  mortgagor,  with  consent  of  mortgagee,  are  void: 
Wineburgh  v.  Schaer,  2  W.  T.  328. 

Attaching  creditor  is  entitled  to  injunction  to  prevent 
sale  under  fraudulent  chattel  mortgage:  Meacham 
Arms  Co.  v.  Swarts,  2  W.  T.  412. 

Such  right  is  accorded  to  him,  not  only  as  matter  of  equity 
jurisdiction,  but  by  statute  relating  to  foreclosure  of 
chattel  mortgages:  Id. 

Where  temporary  injunction  has  been  granted  "ift-  such 
case,  the  creditor  should,  upon  obtaining  judgment,  be 
permitted  to  file  supplemental  bill  showing  the  fact  of 
judgment  in  his  favor:  Id. 
Chanc^y.     See  Equity. 
Change  of  Venue.     See  Venue. 
Character.     Sec  Evidence. 

Charge  of  Court.    See  Criminal  Law;  Jury  and  Jury  Trials. 
Charters.     See  Corporations;  Municipal  Corporations. 
Checks.     See  Bills  and  Notes. 


108  Child. 

Child.     See  Parent  and  Child. 
Chinese. 

Where,  in  contract  for  doing  work  for  a  city,  it  was  pro- 
vided that  the  contract  was  to  be  void  if  Chinese  were 
employed,  upon  breach  of  the  condition  the  city  need 
not  resort  to  equity  to  annul:  City  of  Portland  v.  Baker, 
8  Or.  356. 
Choses  in  Action.     See  Administrators  and  Executors;  As- 
signments; Taxation. 
Circuit  Courts.     See  Courts;  Judges;  Judgments  and  De- 
crees; Jurisdiction;  Practice;  Rules  of  Court. 
Have  supervisory  control  of  all  inferior  tribunals  by  cer- 

tiorari:  Thompson  v.  Multnomah  County,  2  Or.  34, 
Cannot  entertain  action  on  administrator's  bond  for  al- 
leged delinquencies  until  a  settlement  of  his  accounts 
in  County  Court  is  had:  Hamlin  v.  Kinney,  2  Or.  91; 
Adams  v.  Petrain,  11  Or.  304. 
Have  power  under  acts  of  Congress  to  order  removal  of 
cause  to  United  States  District  Court  in  certain  cases: 
Fields  V.  Lamb,  2  Or.  340. 
Time  for  holding  in  third,  fourth,  and  fifth  districts  not 

changed  by  act  of  1870:  Smith  v.  Smith,  3  Or.  363. 
Have  jurisdiction  concurrent  with  justice  of  the  peace  in 

assault  and  battery:  State  v.  Sly,  4  Or.  277. 
Have  no  original  jurisdiction  in  forcible  entry  and  de- 
tainer: Thompson  v.  Wolf,  6  Or.  308. 
Will  exercise  jurisdiction  under  section  354  of  the  Code 
(sec.  357,  Hill's,  A.  L.)  to  inquire  into  the  right  to  an 
oflBce,  although  municipal  board  by  charter  has  been 
given  jurisdiction:  State  v.  McKinnon,  8  Or.  493. 
Where  the  Code  does  not  provide  for  a  course  of  proceed- 
ing, the  Circuit  Court  will  have  jurisdiction,  and  may 
adopt  a  remedy  suitable  and  conformable  to  the  spirit 
of  the  Code:  Aiken  v.  Aiken,  12  Or.  203. 
Circuit  Court  has,  and  Justice's  Court  has  not,  power  to 
revive  a  justice's  judgment   docketed    in   the    Circuit 
Court  to  make  it  a  lien  on  real  property:  Glaze ^v.  Lewis, 
12  Or.  347. 
Circuit  Judges.     See  Judges. 
Cities.     Sec  Municipal  Corporations. 
Civil  Law.     See  Admiralty. 


Cloud  on  Title.  109 

Claims.      See    Administration;    Attorneys;    County   Court; 

Secretary  of  State. 
Clerks.     See  Bonds;  County  Clerks;  Offices  and  Officers. 
Cloud  on  Title.     See  Quieting  Title. 

One  cannot  dispute  a  title  which  he  sets  up,  and  upon 
which  he  bases  all  his  right:  Eagle  Woolen  Mills  Co. 
V.  Montcith,  2  Or.  277. 
Plaintiff  must  state  facts  which  will  show  that  the  claim 

amounts  to  a  cloud:  King  v.  Higgins,  3  Or.  406. 
Not  every  instrument  calculated  to  induce  belief  in  the 

invahdity  of  plaintiff's  title  is  a  cloud:  Id. 
Not  necessary  for  plaintiff  to  wait  until  disturbed  by  legal 

proceedings  before  bringing  suit:  Id. 
Nor  to  establish  his  title  by  a  judgment  at  law:  Id. 
May  have  relief,  though  his  complaint  shows  legal  title  in 

him:  Id. 
But  if  it  appears  on  the  face  of  the  papers  under  which 
defendant    claims  title  that  the  legal    title  is  in    the 
plaintiff,  the  latter  is  not  entitled  to  relief:  Id. 
Effect  of  section  500  (sec.  504,  Hill's  A.  L.)  of  the  Code 

on  pleading  in  this  class  of  suits:  Id. 
Application  to  the  state  made  by  a  stranger  to  the  title  to 
file  on  land  acquired  by  riparian  owner  by  accretion  is 
void,  and  casts  no  cloud  on  the  latter's  title:  Minto  v. 
Delaney,  7  Or.  337. 
Complaint  must  show  the  apparent  validity,  and  the  real 
invahdity  of  the  instrument  claimed  to  cloud  the  title: 
Teal  V.  Collins,  9  Or.  89. 
Equity  will  enjoin  an  execution  sale  under  a  satisfied 
judgment  to  prevent  a  cloud:  Cox  v.  Smith  and  For- 
ward, 10  Or.  418. 
"When  the  question  is  simply  which  party  has  the  superior 
legal  title,  equity  will  not  interfere:  Coolidge  and  Mc- 
Claine  v.  Forward  and  Ileneky,  11  Or.  118. 
At  the  suit  of  the  grantee  of  a  conveyance,  a  srale  on  exe- 
cution upon  a  judgment  against  the  grantor  may  be 
enjoined,  where  the  bona  Jidcs  of  the  conveyance     is 
questioned:  Id. 
Sale  on  a  judgment  against  one  not  the  owner  of  land 
may  be  restrained  when  the  sale  would  create  a  cloud 
on  the  title:  Wilhelm  v.  Woodcock,  11  Or.  518. 
Complaint  alleging  ownership  in  separate  right  of  real 


110  Cloud  on  Title. 

Cloud  on  Title  (continued). 

property  hy  wi/e,  and  its  subsequent  sale  on  execution 
to  satisfy  judgment  against  husband,  and  delivery  and 
recording  of  sherifif 's  deed,  does  not  state  facts  sufficient 
to  show  a  cloud  on  title:  Lemon  v.  Waterman,  2  W.  T. 
485. 
Codes.     See  Actions  and  Suits;  Statutes. 

Bills  for  review  are  original  suits  under  Code,  and  defense 
is  made  by  answer:  White  v.  Allen,  3  Or.  103;  Crews 
,v.  Richards,  14  Or.  442. 

By  dispensing  with  the  classification  of  bills,  Code  does 
not  take  away  any  right  of  suit:  Heatherly  v.  Hadley 
and  Owen,  4  Or.  1. 

Compilers  of  General  Laws  were  authorized  simply  to  col- 
lect, not  to  comment  or  deliver  judgments  on  them,  and 
the  text  of  the  original  acts  is  authoritative:  Springfield 
Milling  Co.  v.  Lane  Co.,  5  Or.  265. 

Compilation  of  1872,  placing  sections  of  Miscellaneous 
Laws  with  the  Criminal  Code,  does  not  thereby  change 
the  legal  effect  of  those  sections:  State  v.  Gaunt,  13  Or. 
115. 

Legislature  cannot  delegate  to  code  commission  power  to 
amend  the  laws:  Id. 

Provisions  of  the  Miscellaneous  Laws  cannot  be  transferred 
to  the  Criminal  Code  without  appropriate  legislation: 
Id. 

Repeal  of  sections  of  an  act  printed  with  the  Miscellaneous 
Laws  repeals  the  penalty  clause  of  the  act,which  has 
been  collocated  with  the  Criminal  Code  in  the  compila- 
tion of  1872:  Id. 

The  object  of  codes  is  that  courts  may  be  able  to  admin- 
ister justice  in  such  manner  that  a  good  cause  of  action 
be  not  defeated  by  a  legal  quibble:  Tolmie  v.  Dean,  1 
W.  T.  46. 

The  history  of  code  legislation  in  Washington  Territory, 
as  aff'ecting  the  distinctions  between  equity  suits  and  law 
actions,  practice,  and  procedure:  Garrison  v.  Cheeney, 
1  W.  T.  489. 
Coercion.     See  Duress. 
Coin.     See  Money. 
Collections.     See  Attorneys. 
Collisions.     See  Admiralty. 


Common  Carriers.  Ill 

Color  of  Title.     See  Adverse  Possession;   Cloud  on  Title; 

Possession. 
Commercial  Paper.     See  Bills  and  Notes. 
Commissioners.     See  Appeals  and  Errors;  Board  of  Com- 
missioners  for   Erection   of    Penitentiary;    Centennial 
Commission;    Bridges;    County   Court;  Ferries;    High- 
ways;   Mandamus;    Parties;    Paupers;    Public   Lands; 
Schools. 
Commissions.     See  Brokers. 
Commitment. 

An  order  of,  by  court  of  competent  jurisdiction,  not  void 
for  error  of  fact  or  law:  Fleming  v.  Bills,  3  Or.  286. 

Informality  in,  will  not  justify  discharge  on  habeas  corpus, 
where  it  is  in  the  power  of  the  petitioner  to  produce  the 
record,  and  it  is  not  produced:  Id. 
Common   Carriers.     See  Admiralty;   Boats   and  Vessels; 
Negligence;  Railroads. 

The  words  in  a  receipt  of  carrier,  "received  in  good 
order,"  are  prima  facie  proof  of  his  liability,  but  are  a 
recital  only,  and  do  not  constitute  an  agreement:  Seller 
V.  Steamship  Pacific,  1  Or.  409. 

In  federal  courts  the  rule  is,  that  carriers  may  limit  their 
liability  except  for  negligence:  Id. 

Express  stipulation  to  that  effect  necessary;  mere  notice 
is  insufficient;  Id. 

Draymen  of  shipi:)er  taking  receipt  from  carrier,  "not 
accountable  for  contents,"  does  not  bind  shipper:  Id. 

Rule  in  admiralty  suits  in  rem  and  in  personam  as  to 
charging  ship  as  carrier:  Id. 

The  burden  of  proof  is  on  the  shipper  to  show  value  of 
goods  injured:  Id. 

Carriers  are  subject  to  reasonable  regulations  by  legisla- 
ture as  to  carriage  of  freight  and  passengers  through 
locks:  Board  of  Com.  v.  W.  Trans.  Co.,  G  Or.  210. 

Owner  of  steamboat  is  liable  to  a  passenger  injured  in 
going  ashore,  though  at  a  point  where  boat  landed 
before  arriving  at  his  destination:  Dice  v.  W.  T.  &  L. 
Co.,  8  Or.  GO. 

Modification  of  contract  of  carriage  of  freight  by  change 
of  address  upon  a  package,  a  question  for  the  jury: 
Bennett  v.  N.  P.  Ex.  Co.,  12  Or.  49. 

f 


112  Common  Carriers. 

CJommom  Carriers  (continued). 

Carrier  is  liable,  in  carriage  of  express  package,  until 
delivery  or  tender  to  consignee:  Id. 

Effect  of  consigning  goods  to  owner  in  care  of  agent  of 
carrier  is  to  exonerate  the  carrier  on  delivery  to  the 
agent:  Id. 

Condition  in  freight  receipt  requiring  written  claim  of 
loss  within  ninety  days  is  waived  by  the  carrier  not 
requiring  compliance:  Id. 

Printed  notice  of  reward  offered  by  the  carrier,  posted  in 
conspicuous  places,  is  admissible  as  evidence  of  admis- 
sion of  liability:  Id. 

Agent  of  the  carrier,  receiving  money  consigned,  directed 
to  his  care,  may  testify  as  to  the  capacity  and  for  whom 
he  acted  in  receiving  it:  Id. 

Private  and  common  carriers  distinguished:  Honeyman 
V.  Oregon  etc.  R.  R.  Co.,  13  Or.  352. 

Qusere,  whether  carriers  of  live  animals  are  common  car- 
riers as  to  them:  Id. 

Common  carrier,  not  holding  itself  out  as  a  carrier  of  dogs, 
permitting  its  servant  to  take  charge  of  and  transport 
dogs,  is,  at  most,  liable  as  a  private  carrier:  Id. 

Complaint  charging  defendant  as  a  common  carrier,  no 
recovery  can  be  had  on  proof  of  liability  as  a  private 
carrier:  Id. 

Memorandnm  of  receiving  agent  of  ship,  signed  and  show- 
ing rcceii^t  of  goods  for  shipment  and  delivery,  is  a  bill 
or  lading:  Williams  v.  Steamship  Columbia,  1  W.  T. 
95. 

Wharfinger  who  receives  goods  from  ship  with  instructions 
not  to  deliver  to  consignee  until  payment  of  freightage 
is  agent  of  the  carrier:  Id. 

Rights  of  consignee  on  receipt  of  goods  damaged  in  transit: 
Id. 

Consignee  in  such  case  must  use  reasonable  diligence  in 
'A         examining  the  goods  and   ascertaining   the  extent  of 
injury:  Id. 

He  sliould  not  be  permitted  to  amend  his  libel  to  include 
domoges  discovered  after  the  institution  of  suit,  that 
by  diligence  might  have  been  discovered  before:  Id. 
Common  Council.     See  Municipal  Corporations. 


Complaints.  113 

Common   Law.     See  Criminal  Law;  Jurisdiction. 

No  indictable  common-law  ofienses  in  Oregon:  Territory 

V.  Vowels,  4  Or.  324;  State  v.  Gaunt,  13  Or.  115. 
In  the  absence  of  allegation  and  proof  to  contrary,  com- 
mon-law rule  of  limitation  of  actions  is  presumed  to 
prevail  in  other  states:  Goodwin  v.  Morris,  9  Or.  322. 
Common  law  is  presumed  to  exist  in  other  states,  except 
80  far  as  shown  to  be  changed  by  statute:  Cressey  v. 
Tatoni,  9  Or.  541. 
Common  Nuisance.    See  Nuisances. 
Common  Schools.     See  Schools. 
Common  School  Fun^.     See  Schools. 
Community  Property.   See  Husband  and  Wife. 
Complaints.     See  Pleading. 

On  note,  an  allegation  that  defendant  made  his  promis- 
sory note  in  writing,  and  thereby  promised  to  pay  plain- 
tiff, is  suflBcient  to  show  plaintiff  is  the  owner  of  the  note: 
Moss  V.  Cully,  1  Or.  147. 
For  mechanic's  lien,  must  state  when  and  where  the  lalwr 
was  performed:  Willamette  Falls  etc.  Co.  v.  Smith,  1  Or 
171. 
On  note,should  state  facts  giving  cause  of  action,  not  mere 

conclusions  of  law:   Williams  v.  Knighton,  1  Or.  234. 
Such  complaint  is  insufficient  if  it  does  not  show  the  note 

sued  upon  was  then  due:  Id. 
In  slander,  what  sufficient  averment  of  publicity,  and  what 
sufficient  allegation  of  words  to  charge  a  felony:  Ilurd 
v.  Mcore,  2  Or.  85. 
In  partition,  must  describe  the  property  and  the  interest 

of  the  persons  therein:  Hanner  v.  Silver,  2  Or.  336. 
On  contract  not  to  be  performed  within  a  year,  need  not 
allege    promise  was  in  writing:  Hedges  v.   Strong    3 
Or.  18. 
Insufficient,  may  give  court  jurisdiction  to  grant  leave  to 

amend:  Norman  v.  Zieber,  3  Or.  197. 
In  action  to  recover  the  possession  of  real  property,  need 
not  set  out  the  muniments  of  title:  Pease  v.  Hannah   3 
Or.  301. 
In  foreclosure  of  mechanic's  lien,  must  show  contract  was 
made  with  an  owner  or  his  agent:  Marooney  v.  McKay, 
3  Or.  372. 
Pleading  special  damages  for  loss  of  prospective  carnincs 

Or.  Dia.-8  ^ 


114  Complaints. 

Complaints  (continued). 

must  show  that  plaintiff  could  not  have  earned  an  equal 
or  greater  sum  elsewhere  during  the  same  time:  Brown 
V.  Moore,  3  Or.  435. 

For  goods  sold  and  delivered,  must  allege  facts  showing  a 
promise  to  pay,  and  that  payment  is  due:  Bowen  v.  Em- 
merson,  3  Or.  452. 

Foreclosure  of  mechanic's  lien,  must  show  notice  was  filed 
pursuant  to  statute:  D.  L.  &  M.  Co.  v.  W.  W.  M.  Co.,  3 
Or.  527. 

On  collateral  undertaking  under  the  statute  of  frauds, 
plaintiff  must  declare  specially:  Hayden  v.  Steadman, 
3  Or.  550. 

The  complaint  must  show  that  a  contract  was  made  be- 
tween the  parties,  and  that  it  was  upon  a  consideration: 
Id. 

In  action  on  justice's  judgment,  seeking  to  acquire  lien  on 
realty  when  the  plaintiff  has  neglected  to  file  a  tran- 
script of  his  judgment  under  the  statute  with  the  county 
clerk,  the  complaint  is  insufiicient  if  it  does  not  show 
an  excuse  for  such  neglect:  Pitzer  v.  Russel,  4  Or.  124. 

Complaint  on  a  bail  bond  must  show  that  the  accused  was 
bound  over  on  charge  of  crime  known  to  the  law:  Han- 
nah V.  Wells,  4  Or.  249. 

Objection  to  insufficiency  of  the  facts  pleaded  to  constitute 
a  cause  of  action  is  not  waived  by  answer:  King  and 
Lounsdale  v.  Boyd,  4  Or.  326;  Evarts  v.  Steger,  5  Or. 
147;  Mack  v.  Salem,  6  Or.  275.  • 

Complaint  in  action  brought  by  plaintiff  as  trustee  of  an 
express  trust  should  show  for  whose  benefit  it  was 
brought:  ITolladay  v.  Davis,  5  Or.  40. 

Where  statute  requires  contract  payable  in  gold  coin  to 
be  in  writing,  complaint  need  not  allege  it  was  in  writ- 
ing: Taylor  v.  Patterson  &  Co.,  5  Or.  121;  Russell  v. 
Swift,  5  Or.  233. 

What  complaint  must  show  in  suit  to  reform  on  the  ground 
of  mistake:  Evarts  v.  Steger,  5  Or.  147;  Lewis  v.  Lewis, 
5  Or.  1G9;  Stephens  v.  Murton,  6  Or.  193;  Ramsey  v. 
Loomis,  6  Or.  367;  Smith  v.  Butler,  11  Or.  46. 

In  action  for  trespass  by  cattle,  it  must  be  alleged  that 
plaintiff  maintained  a  statutory  fence:  Campbell  v.  Brid- 
well,  5  Or.  311;  but  otherwise  where  the  trespass  oc- 


Complaints.  115 

Complaints  (continued).  , 

curred    in    a    county   expressly  exempted    from   the 
provisions  of  the  act:  French  v.  Cresswell,  13  Or.  418. 

In  action  to  try  the  right  to  office,  for  offering  to  reward 
voter  and  thereby  becoming  disqualified:  Oregon  v. 
Church,  5  Or.  375. 

In  action  for  deceit,  what  allegations  are  essential:  Rolfes 
V.  Russel,  5  Or.  400. 

In  ejectment,  must  set  forth  nature  of  plaintiff 's  estate  in 
the  premises:  Thompson  v.  Wolf,  6  Or.  308. 

What  sufficient  to  shew  plaintiff  is  especially  damaged  by 
obstruction  of  highway:  Milarkey  v.  Foster,  G  Or.  378; 
Roseburg  v.  Abraham,  8  Or.  509;  Luhrs  v.  Sturtevant, 
10  Or.  170. 

In  suit  to  set  aside  a  deed  on  the  ground  of  false  represen- 
tations, the  complaint  must  allege  that  the  injured  party 
relied  upon  them,  and  was  thereby  misled  to  his  injury: 
Horrell  v.  Manning,  6  Or.  413. 

In  action  for  negligence,  must  allege  the  facts  constituting 
the  negligence:  Heilncr  v.  Union  County,  7  Or.  83. 

Allegation  that  "  one  F.  P.,  the  daughter  of  the  plaintiff," 
etc.,  is  sufficient  allegation  that  she  is  the  daughter  of 
the  plaintiff:  Parker  v.  Monteith,  7  Or.  277. 

Complaint  for  conversion  containing  no  allegation  of  own- 
ership, or  wrongful  taking  from  plaintiff,  is  insufficient; 
Johnson  v.  Oregon  Steam  Nav.  Co.,  8  Or.  35. 

In  action  for  damages  for  breach  of  promise  of  marriage: 
Lahef  v.  Knott,  8  Or.  198. 

In  action  for  breach  of  undertaking  given  in  replevin: 
Cooper  v.  McGrew,  8  Or.  327. 

Allegation  that  the  work  "was  performed  according  to  con- 
tract" is  sufficient  pleading  of  the  performance  of  a  con- 
dition under  the  Code:  Griffin  v.  Pitman,  8  Of:-342; 
Fisk  v.  Henarie,  13  Or.  156. 

In  injunctioa  suit,  must  not  only  allege  irreparable  in- 
jury, but  state  the  facts  from  which  it  will  appear:  City 
of  Portland  v.  Baker,  8  Or.  356. 

Corporation,  like  private  persons,  in  an  action  for  public 
nuisance  must  allege  special  damage  to  itself  by  reason 
thereof:  City  of  Roseburg  v.  Abraham,  8  Or.  509. 

In  suit  by  wife  to  recover  her  one  third  of  property  of 
husband  not  divided  by  decree  of  divorce  granted,  must 


116  Complaints. 

Complaints  (continued). 

allege  the  interest  of  a  person  in  possession  who  is  made 

defendant:  Weiss  v.  Bethel,  8  Or.  522. 
Complaint    alleging    fraudulent    conduct    not   afifecting 

plaintiff's  rights  is  insufficient:  Id. 
Complaint  is  aided  by  answer  disclosing  facts  necessary, 

but  omitted  in  the  complaint:  Turner  v.  Corbett,  9  Or. 

79. 
So  in  failing  to  allege  performance  of  the  contract,  the 

complaint  is  sufficient  after  verdict,  where  the  answer 

supplies  the  fact:  Id. 
In  partition,  must  allege  plaintiff  is  in  possession:  Farris 

V.  Hayes,  9  Or.  81. 
In  suit  to  remove  cloud  on  title,  or  to  quiet  title  under 

section  500  of  the  Code:  Teal  v.  Collins,  9  Or.  89. 
In  suit  by  creditor  to  set  aside  fraudulent  conveyance,  it 

is  sufficient  to  allege  the  return  of  execution  unsatisfied: 

Page  &  Co.  V.  Grant,  9  Or.  116. 
On  claim  against  school  district  must  show  that  the  claim 

has  been  presented  to  the  directors:  Stackpole  v.  School 

District  No.  5,  9  Or.  508. 
Allegation  of  judgment  of  a  court  of  inferior  jurisdiction 

must  state  facts  showing  jurisdiction:  Dick  v.  Wilson, 

10  Or.  490. 
In  forcible  entry  and  detainer,  need  not  aver  service  of 

notice  to  quit:  Chung  Yow  v.  Hop  Chong,  11  Or.  220. 
On  promise  to  pay  for  services,  must  allege  performance, 

or  that  plaintiff  is  legally  obligated  to  perform,  and 

ready  and  willing  to  perform:  Weiner  v.  Lee  Shing,  12 

Or.  276. 
Failure  to  allege  place  where  the  goods  were  taken,  in 

replevin,  is  cured  by  verdict:  Kirk  v.  Matlock,  12  Or. 

819;  Moorhouse  v.  Donacp,,  14  Or.  430. 
Or  by  sheriff's  return  on  file  in  the  cause,  showing  the 

property  is  within  the   court's  jurisdiction:    Stiles   v. 

James,  2  W.  T.  l94. 
Complaint  that  a,  third  person  rented  a  store  to  defend- 
ant, who  agreed  to  pay  rent  to  plaintiff,  states  a  cause  of 

action:  Schneider  v.  White,  12  Or.  503. 
In  an  action  against  sheriff  for  neglect  to  pay  over  money 

realized  on  a  writ  of  execution:  Schneider  v.  Sears,  13 

Or.  69. 


Complaints.  117 

Complaints  (continued). 

In  action  on  an  injunction  bond  must  state  the  injunction 
was  wrongful  and  without  probable  cause:  Olds  v.  Gary, 
13  Or.  362. 

Allegation  of  conversion  and  damage  in  a  complaint  in 
assumjysit  may  be  held  surplusage,  and  the  complaint, 
otherwise  sufficient,  be  held  to  state  an  action  on  con- 
tract:  Suksdorfif  V.  Bigham,  13  Or.  369. 

Complaint  indefinite  as  to  whether  in  tort  or  on  contract 
may  be  amended,  where  the  facts  will  sustain  an  action 
on  contract,  to  uphold  an  attachment  already  issued: 
Id. 

Allegation  in  complaint  for  seduction,  that  the  daughter 
was  of  the  age  of  sixteen  years,  sufficiently  alleges  that 
she  was  under  twenty-one:  Lee  v.  Cooley,  13  Or.  433. 

Complaint  against  a  corporation,  without  an  averment  of 
its  incorporation,  is  bad  on  demurrer;  but  when  the  de- 
fendant goes  to  trial  without  objection,  the  complaint 
will  be  regarded  as  having  been  amended:  Tolmie  v. 
Dean,  1  W.  T.  46. 

Complaint,  being  the  common  counts  for  goods  sold,  is  not 
demurrable,  though  subject  to  motion  to  strike  out  or 
to  make  more  definite:  Renton  v.  St.  Louis,  1  W.  T.  215. 

Complaint  for  malicious  prosecution  and  arrest  must  state 
facts  showing  the  termination  of  the  prosecution  and 
arrest  in  favor  of  the  plaintiff  bringing  the  action  for 
damages:  Ferguson  v.  Tobey,  1  \V.  T.  275. 

On  replevin  bond  stating  discontinuance  of  suit  and  dam- 
ages, sufficient:  Meigs  v.  Keach,  1  W.  T.  305. 

On  a  bond,  must  aver  that  defendants  bound  themselves 
by  their  writing  obligatory,  and  allege  delivery:  Walla 
Walla  Co.  V.  Ping,  1  W.  T.  339. 

Complaint  to  charge  a  county  for  support  of  a  pauper 
must  show  that  the  county  recognized  the  person  as  a 
pauper:  Collins  v.  King  County,  1  W.  T.  416. 

Must  allege  that  the  claim  against  the  county  was  pre- 
sented and  disallowed  by  the  county  commissioners: 
Id. 

Complaint  to  establish  title  under  Donation  Act  must  al- 
lege compliance  with  the  several  requirements  of  sec- 
tion 12  of  the  act:  Shockley  v.  Brown,  1  W.  T.  463. 

On  a  note  elating  that  jthe  same  had  not  "  been  paid,  or 


118  Complaints. 

Complaints  (continued). 

any  part  thereof,  except  the  sum  of,"  etc.,  held  not  to 
directly  allege  any  payments;  and  the  note  being  other- 
wise barred  by  limitation,  complaint  states  no  cause  of 
action:  Yesler  v.  Oglesbee,  1  W.  T.  604. 

In  suit  to  set  aside  a  judgment,  where  the  allegations 
show  the  same  subject-matter  was  litigated  in  the  origi- 
nal action,  and  no  facts  justifying  the  interference  of  a 
court  of  equity,  is  insufficient:  Wingard  v.  Jameson,  2 
W.  T.  402.        "  - 

Compensation.     See  Attorneys;  Contracts;  Costs  and  Dis- 
bursements; Fees;  Damages;  Eminent  Domain. 

Fixed  by  statute  for  certain  services  cannot  be  increased: 
Territory  v.  King,  1  Or.  106. 

Where  statute  requires  board  of  commissioners  to  have  a 
secretary,  he  is  entitled  to  reasonable  compensation: 
Territory  v.  Norris,  1  Or.  107. 

Compensation  and  damages  under  ditch  law  of  1868 
(c.  39,  tit.  1,  Hill's  A.  L.):  Seely  v.  Sebastian,  4  Or. 
25. 

State  treasurer  as  member  of  board  of  school  land  com- 
missioners is  not  entitled  to  compensation  'for  his  ser- 
vices: Fleischner  v.  Chadwick,  5  Or.  152. 

Compensation  of  police  judge  of  the  city  of  Portland: 
Portland  v.  Denny,  5  Or.  160;  Adams  v.  Multnomah 
County,  6  Or.  116. 

Compensation  of  public  officers  is  within  the  control  of 
the  legislature:  Portland  v.  Besser,  10  Or.  242. 

Attorneys  are  entitlod  to,  on  collections  placed  in  their 
hands,  although  debtor-  pays  to  creditor  direct:  Saubert 
&  Co.  V.  Conley  and  Lcasurc,- 10  Or.  488. 

Real  estate  broker  who  finds  and  brings  purchaser  is  en- 
titled to  his  commission,  though  the  seller  then  refuses 
to  sell:  Fisk  v.  Henarie,  13  Or.  156. 

Statute  requiring  witnesses  living  within  two  miles  of 
place  of  trial  in  criminal  case  to  attend  without  com- 
pensation is  not  unconstitutional:  Daly  v.  Multnomah 
County,  14  Or.  20. 

Such  services  are  not  "  particular  services,"  within  article 
1,  section   18,  of  the  state  constitution,  which  may  not 
be  demanded  without  just  compensation:  Id. 
Composition.     See  Assignment  for  Benefit  of  Creditors. 


Consignments.  119 

Composition.     See  Assignment  for  Benefit  of  Creditors. 
In  what  case  the  liability  of  third  persons  to  creditor  of 
insolvent  is  discharged  by  the  creditors  signing  com- 
position agreement:    Nicolai  v.  Lyon,  6  Or.  457;  S.  C, 
8  Or.  56. 
Broker  loaning  money  on  insufficient  security  is  released 
from    liability   by   his   principal   signing   composition 
agreement  releasing  borrower:    Nicolai  v.  Lyon,  8  Or. 
56. 
Notice  by  creditors  signing,  of  the  value  of  their  liens  on 
property  of  the  debtor,  is  presumed:  Id. 
Compromise. 

Release  of  doubtful  claim  is  suflScient  consideration  for 
counter-release  of  damages:    Williams  v.  Poppleton,  3 
Or.  139. 
Criminal  charge  before  arrest  or  holding  to  answer  can- 
not be  compromised:  Saxon  v.  Hill,  6  Or.  388. 
On  compromise  of  larceny,  no  more  than  the  value  of  the 
property  and  expenses  of  reclaiming  it  can  be  exacted: 
Id. 
An  agreement  to  acknowledge  satisfaction  is  not  a  compro- 
mise of  a  crime  until  executed  and  charge  dismissed: 
M. 
Compromises,   and   voluntary    settlements    of    disputed 
claims,  where  characterized  by  good  faith,  are  favored 
by  the  courts:  Wells  v.  Neflf,  14  Or.  66. 
Such  settlements  will  not  be  disturbed  for  ordinary  mis- 
take of  law  or  fact:  Id. 
Party  seeking  to  set  aside  such  settlement  must  restore 
the  property  or  rights  he  obtains  under  it:  Id. 
Condemnation.     See  Eminent  Domain. 
Conditional  Sales.     See  Sales. 

Conditions.     See  Contracts;  Deeds;  Sales.  ~^=— 

Confessions.     See  Evidence. 

Confessions  of  Judgment.    See  Judgments  and  Decrees. 
Confirmation  of  Sale.     See  Executions  and  Supplemental 

Proceedings. 
Congress.     See  Constitutional  Law. 
Consideration.     See   Bills   and   Notes;   Contracts;   Deeds; 

Statute  of  Frauds. 
Consignments.     See  Contracts;  Common  Carriers. 


120  Conspiracy. 

Conspiracy. 

Conversations  of  persons  in  company  with  defendants,  as 
to  the  purpose  intended,  admissible  to  prove  conspiracy: 
State  V.  Fitzhugh,  2  Or.  227. 

Evidence  of  the  acts  and  declarations  of  co-conspirators  in 
prosecution  of  common  intent  admissible:  Id. 

Confession  of  one,  made  after  the  enterprise,  does  not  bind 
other  co-conspirators:  Sheppard  v.  Yocum  and  De  Lash- 
mutt,  10  Or.  402. 
Constables. 

Sheriff,  in  section  110,  Civil  Code  (sec.  112,  Hill's  A.  L.), 
in  regard  to  arrest  in  civil  cases,  includes  constables: 
Hume  V.  Norris,  5  Or.  478. 

Duty  of,  upon  delivery  by  sureties  of  person  arrested,  back 
to  constable's  custody,  is  to  acknowledge  the  return  of 
the  person  by  certificate  indorsed  upon  a  certified  copy 
of  the  undertaking  of  bail:  Id. 

Cannot  serve  notice  of  appeal  out  of  their  precincts:  Sloper 
and  Kelso  v.  Carey,  1)  Or.  511. 

Chief  of  police  acting  as  constable  cannot  retain  the  fees 
earned:  Portland  v.  Besser,  10  Or.  242. 

Constable  may  serve  a  summons  in  any  precinct  in  his 
county:  Taylor  v.  Jenkins,  11  Or.  274. 

Constable  may  appoint  deputy  to  perform  a  particular 
ministerial  service,  but  not  a  permanent  deputy  for 
general  discharge  of  his  duties:  Prickett  v.  Cleek,  13 
Or.  415. 

Judgment  by  default  by  justice,  summons  appearing  to 
have  been  served  by  one  signing  as  "  deputy  "  consta- 
ble, is  void:  Id. 
Constitutional  Law.     See  Jurisdiction;  Statutes. 

1.  Principles. 

2.  Legislative  Powers. 

3.  The  Constitution  of  Oregon. 

4.  The  Constitution  of  the  United  States. 

5.  Territorial  Government. 
1.   Principles. 

Statute  may  be  void  in  part  for  unconstitutionality,  and 
good  so  far  as  it  is  constitutional:  State  v.  Wiley,  4  Or. 
184;  Fleischner  v.  Chadwick,  5  Or.  152. 

In  construing  different  parts  of  the  constitution,  effect 


CONSTITUTIOXAL    LaW.  121 

CJonstitutional  Law  (continued). 

should    be   given   to   all   the   words:    Rugh   v.    Otten- 
heimer,  6  Or.  231. 

The  principle  of  stare  decisis  is  especially  applicable  when, 
after  a  court  has  once  declared  a  statute  constitutional, 
it  is  called  upon  to  pass  upon  the  question  again:  Mult- 
nomah Co.  V.  Sliker,  10  Or.  65. 

Act,  to  be  declared  unconstitutional,  must  be  clearly  pro- 
hibited: Cline  and  Newsome  v.  Greenwood  and  Smith, 
10  Or.  230;  Cresap  v.  Gray,  10  Or.  345. 

"When  a  statute  has  long  been  recognized  as  binding,  it 
should    not    be   declared    unconstitutional    unless   un- 
equivocally so:  Crawford  v.  Beard,  12  Or.  447. 
2.    Legislative  Powers. 

The  legislature  may  authorize  district  judge  to  appoint 
special  term:  O'Kelly  v.  Territory,  1  Or.  51. 

May  change  term  of  office  after  it  is  filled  from  two  years 
to  one:  Territory  v.  Pyle,  1  Or.  149. 

Legislature  may  change  ferry  rates  of  a  ferry,  the  rates  of 
which,  by  its  charter,  are  subject  to  the  same  regula- 
tions by  law  as  "other  ferries  are,  or  may  hereafter  be": 
Stephens  and  Frush  v.  Powell,  1  Or.  2S3. 

Legislature  may  control  unearned  emoluments  of  office: 
Bird  V.  Wasco  Co.,  3  Or.  282. 

Legislature  cannot  create  an  emergency,  but  mav  declare 
an  emergency  to  exist,  so  that  an  act  takes  cflect  from 
approval:  McWhirter  v.  Brainard,  5  Or.  426. 

Legislature  may  make  reasonable  regulations  in  regard  to 
transportation  of  freight  and  passengers  by  corporation 
through  locks:  Board  of  Commissioners  v.  W.  Trans. 
Co.,  6  Or.  219. 

Legislature  cannot  authorize  a  private  corporation  to  ap- 
propriate the  property  of  an  individual  without  just  com- 
pensation first  assessed  and  tendered:  Oregonian  .R'y 
Co.  V.  Hill,  9  Or.  37G. 

Legislative  power  for  public  purposes,  as  distinguished 
from  private,  over  the  regulation  of  municipal  corpora- 
tions and  the  appointment  of  officers,  is  unlimited :  David 
V.  Portland  Water  Committee,  14  Or.  98. 

The  supplying  of  pure  water  to  the  metropolis  of  the  state 
is  a  matter  of  public  concern,  properly  within  the  power 


122  Constitutional  Law. 

Constitutional  Law  (continued). 

qf  the  legislature  to  control  by  direct  act,  without  sub- 
mission to  vote  of  the  people  affected:  Id. 

Legislature  has  all  power  not  expressly  limited:  Id. 

Has  power  to  control  the  use  of  streets  and  public  prop- 
erty in  a  city,  but  not  to  divert  the  same  from  the  pur- 
pose for  which  originally  dedicated:  P.  &  W.  V.  R.  R. 
Co.  V.   Portland,  14  Or.  188. 

Legislature  has  power  to  divide  counties  at  pleasure,  and 
.apportion  common  burdens  of  taxes  and  public  debt 
and  the  common  property:  Morrow  Co.  v.  Hendry x,  14 
Or.  397. 

Has  power  to  establish  road  and  require  counties  through 
which  it  passes  to  bear  the  expense  in  proportion  to  the 
miles  in  each  county:  Lewis  Co.  v.  Hayes  and  Ken- 
nedy, 1  W.  T.  109. 

Legislature  of  Oregon  Territory  had  plenary  power  to 
grant  divorces  by  special  act,  and  courts  have  no  au- 
thority to  review  its  action:  Maynard  v.  Valentine,  2 
W.  T.  3;  Maynard  v.  Hill,  2  W.  T.  321. 

Distinctions  between  legislative  and  judicial  powers:  Id. 

The  unlimited  legislative  power  of  British  Parliament  is, 
in  American  legislatures,  restricted  by  constitutions:  Id. 
3.  The  Constitution  op  Oregon. 

Justice's  jurisdiction  under  article  7,  section  1,  maybe  in- 
creased from  $100  to  $250:  Noland  v.  Costello,  2  Or.  57. 

The  act  does  not  contravene  article  4,  section  22,  since  it 
repeals  certain  sections  of  the  former  act,  and  sets  forth 
in  full  the  new  provisions  adopted  in  lieu  thereof:  Id. 

Under  article  4,  section  22,  the  amended  act  need  not  be 
set  out  in  full  as  it  at  first  stood,  but  it  must  be  set  out 
in  full  as  amended  or  revised,  with  all  changes:  Port- 
land V.  Stock,  2  Or.  G9;  Dolan  v.  Barnard,  5  Or.  390. 

.Street  assessment  on  adjacent  lots  is  not  in  conflict  with 
article  1,  section  32,  which  applies  only  to  the  defray- 
ing of  the  general  expenses  of  government:  King  v. 
Portland,  2  Or.  146. 

Article  15,  section  5,  changes  common  law  regarding  sepa- 
rate property  of  married  women:  Brummet  v.  Weaver, 
2  Or.  168. 

The  property  a  woman  has  at  time  of  marriage,  or  after- 
ward acquired  by  gift,  devise,  or  inheritance,  renuxins 


COXSTITUTIONAL    LaW.  123 

Constitutional  Law  (continued). 

bcrs  by  article  15,  section  5,  until  she  voluntarily  parts 
with  it:  Id.;  Rugh  v.  Ottenheimer,  6  Or.  231;  Bcsser 
V.  Joyce,  9  Or.  310. 

An  act  conferring  the  jurisdiction  and  power  of  the  jus- 
tice of  the  peace  on  a  municipal  judge  within  municipal 
limits  is  not  a  special  law  regulating  jurisdiction  of 
justices  under  article  4,  section  23,  subdivision  1:  Ryan 
V.  Harris,  2  Or.  175;  Craig  v.  Hosier,  2  Or.  323;  State 
V.  Wiley,  4  Or.  184;  Portland  v.  Denny,  5  Or.  IGO; 
Multnomah  Co.  v.  Adams,  6  Or.  114. 

Amendment  to  section  93  of  the  Code  (sec.  95,  Ilin's  A.  L.), 
allowing  equitable  defense  in  actions  at  law,  not  uncon- 
stitutional under  article  4,  section  22:  Delay  v.  Chap- 
man, 2  Or.  242. 

Law  requiring  witness  to  demand  fees  at  the  term  of  court 
when  earned  is  not  contrary  to  article  1,  section  18: 
Lannahan  v.  Multnomah  Co.,  3  Or.  187. 

Object  of  article  4,  section  20,  is  to  prevent  matters  wholly- 
foreign  to  the  subject  expressed  in  title  from  being  put 
in  the  act:  Simpson  v.  Bailey,  3  Or.  515;  McWhirter 
V.  Brainard,  5  Or.  426;  Burch  v.  Earhart,  7  Or.  58; 
Singer  M.  Co.  v.  Graham,  8  Or.  17;  O'Kecfe  v.  Weber, 
14  Or.  55. 

By  the  fifteenth  amendment  to  the  constitution  of  the 
United  States,  the  restriction  in  the  state  constitution 
of  the  right  to  vote  to  white  persons  is  void:  Wood  v. 
Fitzgerald,  3  Or.  5G8. 

Executive  pardon  restores  the  privilege  of  an  elector  con- 
victed of  crime;  and  article  2,  section  3,  does  not  oper- 
ate as  a  restriction  upon  his  right  to  vote:  Id. 

Residence,  for  the  purpose  of  voting,  may  be  gained  by 
an  employee  of  the  United  States,  or  the  state,-iadepcn- 
dently  of  his  employment,  within  article  2,  section  4:  Id. 

Statute  authorizing  the  laying  out  of  privat*e  roads  over 
land  of  another  without  consent  is  void  under  article 
1,  section  18:  Witham  v.  Osburn,  4  Or.  318. 

Municipal  corporation  cannot  agree  to  pay  certain  sums 
annually  in  installments,  the  aggregate  of  which  ex- 
ceeds its  power  to  contract  debts,  under  its  charter  and 
article  11,  section  5,  of  the  constitution:  Salem  Water 
Co.  v.  Salem,  5  Or.  29. 


124  Constitutional  Law. 

Constitutionar Law  (continued). 

Requiring  payment  of  a  trial  fee  is  not  in  contravention 
of  article  1,  section  6,  which  declares  that  justice  shall 
be  administered  openly  and  without  purchase:  Bailey 
V.  Frush,  5  Or.  136. 

Repeal  by  implication  is  not  obnoxious  to  article  4,-  sec- 
tion 22:  Fleischner  V.  Chadwick,  5  Or.  152;  Grant  Co. 
V.  Sels,  5  Or.  243;  Stingle  v.  Nevel,  9  Or.  62. 

Legislature  cannot  take  from  board  of  commissioners 
created  by  article  4,  section  5,  the-control  of  funds  aris- 
ing from  sale  of  school  lands,  and  vest  it  in  county 
treasurers:  Fleischner  v.  Chadwick,  5  Or.  152. 

Notwithstanding  article  15,  section  5,  husband  and  wife 
cannot  contract  with  each  other:  Pittman  v.  Pittman, 
4  Or.  298;  Elfelt  v.  Hinch,  5  Or.  255. 

Offer  to  pay  into  treasury  part  of  salary,  made  to  voters 
by  candidate,  is  not  an  offer  to  reward  a  voter  within 
article  2,  section  7,  unless  shown  to  benefit  those  to 
whom  made:  State  v.  Church,  5  Or.  375. 

Act  of  1865,  providing  for  loaning  school  funds,  constitu- 
tional, and  does  not  conflict  with  article  8,  section  2 
and  section  5:  Kubli  v.  Martin,  5  Or.  436. 

Amendment  to  charter  of  East  Portland  does  not  conflict 
with  article  11,  section  2,  of  the  constitution,  prohibit- 
ing formation  of  corporations  except  by  general  law: 
East  Portland  v.  Multnomah  County,  6  Or.  62;  Mult- 
nomah County  V.  Sliker,  10  Or.  65. 

Amendment  to  city  charter  providing  for  excepting  the 
territory  within  the  city  from  the  general  road  laws, 
and  giving  the  city  jurisdiction  in  such  matters,  is  not 
in  conflict  with  article  4,  section  23,  subdivisions  7,  8, 
10,  inhibiting  special  road  laws:  Id. 

A  tax  is  not  unconstitutional  when  it  is  equal  and  uni- 
form throughout  the  taxing  district:  Id. 

Jurisdiction  of  County  Court  to  appoint  guardians  for 
minors  and  lunatics  is  such  as  pertains  to  Probate 
Courts  within  article  7,  section  12:  Monastes  v.  Catlin, 
6  Or.  119. 

Article  15,  section  5,  operates  to  take  away  any  interest 
of  the  husband,  subject  to  execution  for  his  debts,  in 
the  lands  of  his  wife,  whether  married  before  or  after 
the  constitution  took  effect:  Rugh  v.  Ottenheimer,  6 
Or.  231. 


Constitutional  Law.  125 

Constitutional  Law  (continued). 

Said  article  15,  section  5,  is  not  modified  by  article  18, 
section  10,  providing  that  private  rights  shall  not  be 
affected  by  the  changes  effected  by  the  adoption  of  the 
constitution:  Id. 

The  deduction  of  benefits  from  damages  for  private  prop- 
erty taken  for  public  use  as  a  road  is  not  in  conflict 
with  the  constitution:  Putnam  v.  Douglas  County,  6 
Or.  328. 

Specific  appropriation  to  pay  an  existing  deficiency  may 
be  embraced  in  general  appropriation  bill,  within  arti- 
cle 9,  section  7,  without  levying  a  special  tax  to  raise 
the  fund,  if  there  is  sufficient  funds  in  the  treasury 
from  existing  taxation:  Burch  v.  Earhart,  7  Or.  58. 

Legislature  has  discretion  to  determine  sufficiency  of  ex- 
isting tax  to  pay  current  expenses  and  deficiency:  Id. 

Reference  without  consent  of  parties,  under  section  210  of 
the  Code  (sec.  222,  Hill's  A.  L.),  is  not  in  violation  to 
the  right  to  jury  trial  under  article  1,  section  17,  of  the 
constitution:  Tribou  v.  Strowbridge,  7  Or.  156. 

Where  stockholders'  subscriptions  are  paid  up,  they  are 
not  liabfe  personally  for  the  debts  of  the  corporation  un- 
der article  11,  section  2:  Bush  v.  Cartwright,  7  Or.  329. 

Section  29,  chapter  50,  Miscellaneous  Laws  (sec.  4092, 
Hill's  A.  L.),  relating  to  assessment  of  damages  for  tak- 
ing road  material  by  supervisor  from  private  lands,  is 
not  unconstitutional:  Kendall  v.  Post,  8  Or.  141. 

School  land  commissioners  are  by  the  constitution  made 
a  co-ordinate  branch  of  the  state  government,  and  their 
decisions  are  not  reviewable  by  the  courts:  Corpe  v. 
Brooks,  8  Or.  222. 

Trial  for  larceny  of  part  of  several  chattels  taken  at  same 
time,  and  belonging  to  the  same  person,  bars  irial  for 
larceny  of  the  remainder,  since  there  is  but  one  offense, 
and  defendant  cannot  be  put  in  jeopardy  twice:  State 
v.  McCormack,  8  Or.  23e. 

Notes  and  mortgages  are  property  within  article  9,  section 
1,  and  are  subject  to  taxation:  Poppleton  v.  Yamhill 
County,  8  Or.  337. 

Under  article  11,  section  1,  the  establishing  of  no  banks 
is  prohibited,  excepting  those  issuing  bills  and  notes  to 
circulate  as  money:  State  v.  II.  S.  &  L.  A.,  8  Or.  396. 


126  Constitutional  Law. 

Constitutional  Law  (continued). 

Act  creating  and  providing  for  construction  of  a  wagon 
road,  held  not  a  local  or  special  law  within  article  4, 
section  23,  subdivision  7,  of  the  constitution:  Allen  v. 
Hirsch,  8  Or.  412. 

Requirement  that  amondment  be  made  by  publishing  the 
act  or  section  amended  at  full  length  does  not  operate 
as  a  re-enactment  of  those  portions  of  the  old  law  copied 
into  the  enactment  without  change:  Stingle  v.  Nevel,  9 
Or.  62. 

Sheriff's  jury  to  try  titl^  to  property  levied  on  does  not 
perform  judicial  functions,  and  is  not  unconstitutional: 
Capital  Lumbering  Co.  v.  Hall,  9  Or.  93. 

Liability  of  stockholder  under  article  9,  section  2,  is  several 
and  limited,  and  does  not  depend  upon  the  amount  for 
which  other  stockholders  are  liable:  Hodges  and  "Wil- 
son V.  Silver  Hill  Mining  Co.,  9  Or.  200. 

An  act  extending  jurisdiction  of  justice  of  the  peace,  as 
such  officer,  over  viglations  of  town  ordinances,  would  be 
void  under  article  4,  section  23,  subdivision  1:  La  Fay- 
ette V.  Clark,  9  Or.  225. 

An  act  providing  for  the  payment  of  fixed  sums  of  money 
for  services  by  sheriffs  and  clerks  of  certain  counties  is 
a  special  law  within  the  meaning  of  article  3,  section  23, 
subdivision  10,  of  the  constitution:  Manning  v.  Klippel, 
9  Or.  367. 

Legislature  cannot  authorize  a  corporation  to  appropriate 
private  property  without  just  compensation  first  assessed 
and  tendered:  Oregonian  R'y  Co.  v.  Hill,  9  Or.  377. 

Under  article  7,  section  17,  district  attorney  is  the  law 
oflicer  of  his  district,  with  the  powers  of  an  attorney- 
general  at  common  law:  State  v.  Douglas  County  Road 
Co.,  10  Or.  198. 

Act  of  1878  (sec.  2287,  Hill's  A.  L.),  providing  for  election 
of  judges  of  Circuit  and  Supreme  Court  separately,  is 
not  in  conflict  with  constitution,  as  giving  governor 
power  to  appoint  in  interim:  Cline  and  Newsome  v. 
Greenwood  and  Smith,  10  Or.  230. 

Provision  in  city  charter  requiring  chief  of  police,  when 
acting  as  constable,  to  pay  the  fees  earned  thereby  to 
the  city  treasurer,  is  not  unconstitutional  under  article 
4,  section  23,  subdivision  1:  Portland  v.  Besser,  10  Or. 
242. 


Constitutional  Law.  127 

Constitutional  Law  (continued).  • 

Capital  punishment  is  not  prohibited  by  article  1,  section 
15,  of  the  constitution:  State  v.  Anderson,  10  Or.  448. 
Indictment  charging  one  present,  aiding  and  abetting  in 
a  crime,  directly  with  the  commission  of  the  crime,  is 
not  obnoxious  to  article  1,  section  11,  of  the  constitu- 
tution:  State  v.  Kirk,  10  Or.  505. 
Seville,  that  the  mortgage  tax  law  is  not  a  bill  for  rais- 
ing revenue:  Mumford  v.  Sewall,  11  Or.  67. 
The  act  is  valid  though  the  journal  docs  not  show  it  was 
read  on  three  separate  days,  where  the  original  bill  on 
file  shows  the  fact:  Id. 
Under  article  5,  section  8,  the  secretary  of  state  on  assum- 
ing the  duties  of  the  office  of  governor,  in  case  of  va- 
cancy, is  entitled  to  the  salary  of  the  office:  Chadwick 
V.  Earhart,  11  Or.  389. 
He  is  entitled  to  such  salary,  though  he  still  performs  the 
duties  and  obtains  the  salary  of  the  office  of  secretary 
of  state:  Id. 
After  ceasing  to  be  secretary  he  still  is  entitled  to  the  of- 
fice of  governor  until  the  office  is  regularly  filled  by  elec- 
tion: Id.* 
Mortgage  tax  law  does  not  provide  for  unequal  taxation, 
nor  is  it  a  special  law:  Crawford  v.  Linn  County,  11  Or. 
482. 
No  class  of  property  not  exempted  by  the  constitution, 
article  9,  section  1,  can  be  made  exempt  under  state 
law:  Id. 
A  special  law  under  article  4,  section  23,  of  the  constitu- 
tion is  synonymous  with  "  private  law"  :  Id. 
Grand  jury  law  of  1885,  providing  for  drawing  the  grand 
jury  from  the  list  prior  to  the  term  of  court,  is  in  con- 
flict with  article  4,  section  18:    State  v.  Lawrence,  12 
Or.  297.  ^ 

Statute  allowing  entry  of  judgment  on  default*or  on  con- 
fession, in  vacation,  by  county  clerk,  is  not  unconstitu- 
tional: Crawford  v.  Beard,  12  Or.  447. 
A  law  requiring  registry  by  voters  as  a  prerequisite  to 

voting  is  void:  White  v.  Commissioners,  13  Or.  317. 
A  requirement  to  register  on  a  previous  day  imposes  an 

illegal  qualification:  Id. 
Constitutional  right  to  trial  by  jury  is  the  common-law 


128  Constitutional  Law. 

Constitutional  Law  (continued), 

jury  trial,  and  does  not  apply  to  trials  for  violation  of 
a  city  ordinance:  Wong  v.  Astoria,  13  Or.  538. 

It  is  no  deprivation  of  that  right  that  jury  trial  cannot  he 
had  in  an  inferior  court,  if  it  can  be  had  readily  on 
appeal:  Id. 

Statute  requiring  witnesses  living  within  two  miles  of 
place  of  trial,  in  criminal  cases,  to  attend  without  com- 
pensation, is  not  in  conflict  with  article  1,  section  18: 
Daly  V.  Multnomah  County,  14  Or.  20. 

Such  services  are  not  "  particular  services,"  within  said 
section;  but  are  of  the  class  of  general  services  which 
every  man  is  bound  to  render:  Id. 

An  act  is  not  obnoxious  to  article  4,  section  20,  for  ming- 
ling both  criminal  and  civil  provisions  in  the  same  act: 
O'Keefe  v.  Weber,  14  Or.  55. 

The  title  of  "  An  act  to  prevent  and  punish  gambling  "  is 
a  general  title,  embracing  but  one  subject,  sufficiently 
expressing  civil  and  criminal  remedies  provided:  Id. 

Supplemental  sections  amendatory  of  Portland  charter, 
creating  a  water  commission,  etc.,  held  not  amenda- 
tory of  a  particular  section,  requiring  ^contracts  to  be 
made  by  ordinance:  David  v.  Portland  Water  Com- 
mittee, 14  Or.  98. 

Title  of  the  act  sufficiently  discloses  its  object;  title  need 
not  specify  the  object  in  ail  its  particulars,  but  may 
state  the  general  subject:  Id. 

The  persons  constituting  the  "  water  committee  "  under 
that  act  are  not  within  the  article  15,  section  3,  requir- 
ing oath  of  office:  Id. 

But  semlde,  said  section  executes  itself,  and  an  act  need 
not  prescribe  an  oath  of  office:  Id. 

Persons  constituting  the  "water  commission"  are  not 
officers  within  the  meaning  of  article  15,  section  2,  for- 
bidding creation  of  office,  the  term  of  which  shall  be 
longer  than  four  years:  Id. 

Nor  are  they  county,  township,  precinct,  or  city  officers, 
within  article  8,  sections  6  and  7:  Id. 

Right  of  accused  to  face  witnesses  is  not  denied  by  the 
admission  of  dying  declarations  or  documentary  evi- 
dence of  collateral  facts:  State  v.  Saunders,  14  Or.  300. 

Amendatory  sections  added/ to  a  city  charter,  conferring 


Constitutional  Law.  129 

Constitutional  Law  (continued). 

now  powers,  but  not  altering  existing  provisions,  are 
not  amendments  or  revisions  within  article  4,  section 
22:  David  v.  Pofltland   Water  Committee,  14  Or.  98; 
Sheridan  v.  Salem,  14  Or.  329. 
An  act  to  license  liquor  sales  in  towns,  cities,  and  coun- 
ties,  held    to  operate   as    an   amendment  of    certain 
municipal  charters  without  observing  the  requirements 
of  article  4,  section  21:  State  v.  Wright,  14  Or.  365. 
Same  act  obnoxious  to  article  4,  section  20,  as  not  em- 
bracing but  one  subject  to  be  expressed  in  the  title:  Id. 
4.   The  Constitution  of  the  United  States. 

One  who  sells  liquor  to  Indians  may  be  punished  for  same 
act,  under  act  of  Congress  and  the  territorial  act:  Ter- 
ritory v.  Coleman,  1  Or.  191. 
Under  United  States  constitution  and  acts  of  Congress, 
state  has  control  of  the  domestic  taxation,  and  may  re- 
quire taxes  paid  in  coin:  Whiteaker  v.  Haley,  2  Or. 
128. 
Counterfeiting  is  punishable  in  United  States  courts  only, 
but  the  offense  of  having  tools  therefor  in  possession  is 
not  a  part  of  that  offense,  and  state  may  punish:  State 
v.  Brown,  2  Or.  221. 
Act  of  1874  for  redeeming  lock  bonds,  unconstitutional  as 
impairing   the   obligation    of  contracts:  Goldsmith    v. 
Brown,  5  Or.  418. 
Usury  law  of  1862  is  constitutional,  and  does  not  punish 
one  for  another's  crime,  or  impair  obligation  of  con- 
tracts: Chapman  v.  State,  5  Or.  432. 
Marriage  contract  is  not  within  the  purview  of  the  section 
forbidding  laws  impairing  the  obligation  of  contracts: 
Rugh  V.  Ottenheimer,  6  Or.  231;  Maynard  v.  Valentine, 
2  W.  T.  3;  Maynard  v.  Hill,  2  W.  T.  321. 
Mortgage  tax  law  does  not  impair  the  obligation  of~Con- 

tracts:  Mumford  v.  Sewall,  11  Or.  67. 
Quaere,  whether  the  sixth  amendment  to  the  United 
States  constitution,  giving  accused  in  criminal  cases 
right  to  speedy  trial  in  the  district  where  the  crime  was 
committed,  affects  the  courts  of  a  territory:  Leschi  v. 
Territory,  1  W.  T.  13. 
Granting  a  divorce  is  not  impairing  obligation  of  contracts 

forbiddt;n  by  the  federal  constitution,  article  1,  section 
Oit.  Dig.— t) 


130  Constitutional  Law. 

Constitutional  La"w  (continued). 

10:  Maynard  v.  Valentine,  2  W.  T.  3;  Maynard  v.  Hill, 
2  W.  T.  321. 

Legislative  divorce  by  special  ac4  does  not  impair  the  ob- 
ligation of  contracts:  Id. 

Statute  prescribing  qualifications  of  persons  practicing 
medicine  is  in  no  sense  an  ex  post  facto  law:  Fox  v.  Ter- 
ritory, 2  W.  T.  297. 

Such  statute  does  not  violate  the  fourteenth  amendment 
to  the  constitution,  either  in  depriving  any  person  of  his 
rights,  or  in  making  any  unjust  discrimination  against 
him:  Id. 
5.   Territorial  Government. 

Laws  adopted  by  the  provisional  government  before  the 
territory  was  organized  in  1848  were  valid  and  binding 
before  that  time:  Baldro  v.  Tolmie,  1  Or.  176. 

Judgments  of  territorial  courts  were  transferred  to  state 
courts  by  act  of  June  4, 1859,  and  the  repeal  of  that  act 
did  not  affect  such  judgments:  Strong  v.  Barnhart,  5 
Or.  496. 

Territorial  Probate  Court  was  a  court  of  inferior  and  lim- 
ited jurisdiction:  Farley  v.  Parker,  6  Or.  105. 

The  legislature,  in  enacting  that  the  seat  of  government 
for  the  territory  shall  be  and  remain  at  Vancouver, 
exceeded  the  power  conferred  by  the  Organic  Act  to 
"change  "  the  seat  of  government:  The  Seat  of  Govern- 
ment Case,  1  W.  T.  115. 

Act  relating  to  Skamania  County,  page  44,  statutes  of 
1866,  are  void,  as  not  expressing  the  object  in  the  title: 
Clarke  County  v.  Brazee,  1  W.  T.  199. 

Murder  committed  on  San  Juan  Island  in  1869,  during 
the  joint  occupancy  between  Great  Britain  and  the 
United  States,  pursuant  to  convention  entered  into, 
pending  settlement  of  international  boundary  line,  is 
within  the  jurisdiction  of  the  territorial  courts:  Watts 
V.  United  States,  1  W.  T.  289. 

Such  place  is  not  a  place  within  the  sole  and  exclusive 
jurisdiction  of 'the  United  States,  within  section  3  of  act 
of  Congress  of  April  30,  1790:  Id. 

Sole  and  exclusive  jurisdiction  is  not  that  exclusive  of 
a  state,  as  contradistinguished  from  a  territory,  but 


Constitutional  Law.  131 

Constitutional  Law  (continued). 

rather  as  exclusive  of  local,  state,  or  territorial  juris- 
diction: Id. 

Establishment  of  a  territorial  government  was  implanting 
a  new  jurisdiction,  which  in  relation  to  its  people  was, 
for  the  time  being,  to  serve  in  lieu  of,  or  for  a  purpose 
like  that  of,  a  state  government:  Id. 

The  fact  that  the  United  States,  in  taking  possession  of 
San  Juan  Island,  had  excluded  territorial  officers,  did 
not  displace  the  territorial  jurisdiction,  but  suspended 
the  execution  of  the  territorial  laws  temporarily  therein: 
Id. 

Appellate  jurisdiction  "  limited  by  law,"  prescribed  in  the 
Organic  Act,  means  jurisdiction  limited  and  regulated 
by  territorial  legislature,  there  being  no  limitation  by 
the  constitution,  or  by  act  of  Congress  subsequent  to  the 
Organic  Act:  Nickels  v.  Griffin,  1  W.  T.  374. 

Section  9  of  the  Organic  Act,  allowing  appeals  under  such 
regulations  as  may  be  prescribed  by  law,  precludes  the 
regulation  of  appeals  by  any  other  than  legislative  rule: 
Id. 

Territorial  courts  are  not  a  part  of  the  federal  judiciary:  Id. 

The  expression  "laws  of  said  territory"  in  Organic  Act 
means  such  as  had  operative  force  in  the  territory  at 
the  time  of  the  passage  of  the  Organic  Act;  and  ''in 
other  cases"  means  cases  prescribed  by  territorial  law: 
Id. 

Hence  appeals  in  cases  arising  under  the  laws  of  the  terri- 
tory must  be  made  as  provided  by  the  laws  of  the  ter- 
ritory: Id. 
•  "  Laws  of  the  United  States,"  as  referred  to  in  the  Organic 
Act,  relates  not  only  to  statute  laws,  but  all  other  rules 
of  property  and  conduct  forming  the  body  of  tlie  law  of 
the  United  States:  Phelps  v.  Steamship  City  of  Pamima, 
1  W.  T.  518. 

"  Laws  of  the  territory  "  include  all  the  laws  which  the 
territory  of  Washington,  considered  as  a  political 
power  subordinate  to  the  general  government,  has 
authority  to  administer  as  emanating  from  itself:  Id. 

The  laws  of  the  United  States  distinguij^hed  from  the 
laws  of  the  territory,  as  the  terms  are  used  in  the  Or- 
ganic Act:  Id. 


132  Constitutional  Law. 

CJonstitutional  Law  (continued). 

The  line  of  separation  between  state  and  national  power 
furnishes  a  reliable  analogy  between  that  of  the  nation 
and  Washington  Territory:  Id. 

How  far  maritime  and  admiralty  law  is  a  part  of  the  body 
of  the  law  of  Washington  Territory,  when  the  same  took 
effect,  and  how  affected  by  the  organization  of  the  ter- 
ritory: Id, 

In  creating  a  territorial  government,  Congress  is  vested 
.  with  full  power,  and  may  constitute  the  same  in  any 
form  so  long  as  republican;  Maynard  v.  Valentine,  2 
W.  T.  3. 

The  phrase  "rightful  subjects  of  legislation,"  in  the  Or- 
ganic Act  of  the  territory  of  Oregon,  defined,  and  held 
to  include  marriage  and  divorce  as  within  the  scope  of 
power  granted  the  legislature:  Id.;  Maynard  v.  Hill,  2 
W.  T.  321. 

Under  the  Organic  Act,  the  legislature  might  grant  divorce 
by  special  act:  Id. 

And  this  though  the  defendant  was  out  of  the  territory  at 
at  the  time:  Id. 

Act  of  the  legislative  assembly  of  1879,  providing  a  method 
for  scaling  logs,  is  not  within  the  inhibition  of  section 
1889,  Revised  Statutes  of  United  States:  Crawford  v. 
Cockran,  2  W.  T.  117. 

An  act  of  Congress  relating  to  the  territory  is  as  much  a 
law  of  the  territory  as  if  enacted  by  the  territorial  legis- 
lature: Hill  V.  Washington,  2  W.  T.  147. 

A  retired  officer  of  the  United  States  belongs  to  the  army 
within  the  meaning  of  the  statutes  of  the  United  States, 
and  as  such  cannot  hold  office  in  the  territory:  Id. 

Repeal  of  the  statute  disqualifying  such  officer  does  not 
render  his  previous  election  to  office  valid:  Id. 

Game  law  extending  to  but  five  counties  of  the  territory 
does  not  contravene  the  Organic  Act  of  the  territory, 
which  forbids  the  territorial  legislature  from  granting 
special  privileges:  Hayes  v.  Territory,  2  W.  T.  286. 
Construction.     See  Contracts;  Deeds;  Statutes;  Wills. 
Contempts.     See  Divorce. 

Disobedience  of  witness  to  order  requiring  witnesses  to  be 
excluded  during   the  examination  of  other  witnesses 


Contracts.  133 

Contempts  (continued). 

niav  be  punished  a8  a  contempt:  Hubbard  v.  Hubbard, 
7  dr.  42. 
Couuter-aflidavit   in   proceeding   for   contempt   is  not  a 
pleading,  but  evidence  merely,  and  the  facts  alleged 
may  be  rebutted  without  formal  replication:  State  v. 
McKinnon,  8  Or.  487. 
Question  of,  is  of  fact  merely,  and  will  not  be  examined 
on  appeal,  except  for  errors  of  law  or  want  of  jurisdic- 
tion: Id. 
Judge  in  vacation  cannot   determine  charges  of,  in  dis- 
obeying order  of  the  court  in  term:  Id. 

Continuance.     See  Practice. 

Contracts.  See  Admiralty;  Assignments;  Attachment; 
Bonds  and  Undertakings;  Common  Carriers;  Com- 
plaints; Constitutional  Law;  Damages;  Deeds;  Hus- 
band and  Wife;  Joint  and  Several  Liability;  Sales; 
Specific  Performanxje;  Statute  of  Frauds. 

1.  Consideration. 

2.  Construction. 

3.  Conditions  and  Dependent  Covenants. 

4.  Validity. 

5.  Performance,  and  Wah'Er  of. 

6.  Rights  and  Remedies. 
1.    Consideration. 

Promise  to  pay  another's  debt,  founded  on  new  consid- 
eration, subsisting  liability  of  debtor  no  defense:  Hedges 
V.  Strong,  3  Or.  18;  Ludwick  v.  Watson,  3  Or.  256. 

Release  of  a  doubtful  claim  sufficient  to  uphold  counter- 
release  of  claim  for  damages:  Williams  v.  Poppleton,  3 
Or.  139. 

Parol  e^'idence  admissible  to  prove  actual  consideration 
differing  from  that  expressed  in  a  receipt:  Id.       __ 

Failure  of  consideration  may  be  pleaded  in  action  for 
unpaid  assessment  on  stock  of  corporation:  Oregon 
Central  R.  R.  Co.  v.  Scoggins,  3  Or.  IGl. 

Contract  based  on  separate  agreements  involving  different 
parties  not  valid  unless  by  novation:  Shattuck  v.  Smith, 
5  Or.  125. 

Forbearance,  as  consideration,  must  have  been  concerning 
a  demand  sustainable  in  law  or  equity:  Oregon  etc. 
R.  R.  Co.  V.  Potter,  5  Or.  228. 


134  Contracts. 

Contracts  (continued). 

Subscription  to  a  college,  containing  a  request  express  or 
implied  which  is  complied  with  by  the  institution  to 
its  inconvenience  or  expense,  is  sustained  by  sufficient 
consideration:  Philomath  College  v.  Hartless,  6  Or.  158. 

Promise  by  one  party  without  a  corresponding  obligation 
by  the  other  is  void:  Corbitt  v.  Salem  Gaslight  Co.,  6 
Or.  405. 

Consideration  must  be  expressed  in  a  written  agreement 

-  for  the  sale  of  chattels  over  fifty  dollars  in  value:  Id. 

Moral  obligation  unsupported  by  any  pre-existing  legal 
liability,  no  consideration:  Nine  v.  Starr,  8  Or.  49. 

A  chattel  mortgage  is  a  good  consideration  for  an  agree- 
ment to  make  future  advances:  McFadden  v.  Friendly, 
9  Or.  222. 

Doubtful  right  abandoned  or  compromised  is  sufficient 
consideration:  Oregonian  Railway  Co.  v.  Wright,  10 
Or.  1G2. 

Consideration  for  guaranty  and  contract  to  indemnify,  by 
third  party,  need  not  be  a  benefit  to  himself:  Hilde- 
brand  v.  Bloodsworth,  12  Or.  75. 

In  pleading  on  a  contract  to  pay  for  services,  performance 
of  the  consideration  must  be  alleged:  Weiner  v.  Lee 
Shing,  12  Or.  276. 

A  consideration  moving  from  C  will  sustain  a  promise  by 
B  to  pay  A  money:  Baker  and  Smith  v.  Eglin,  11  Or. 
333;  Hughes  v,  Oregon  R'y  &  Nav.  Co.,  11  Or.  437; 
Schneider  v.  White,  12  Or.  503;  Strong  v.  Kamm,  13 
Or.  172. 

Stranger  performing  work  on  another's  contract  to  exca- 
vate a  street,  by  mistake,  without  the  hitter's  knowl- 
edge, cannot  recover  the  cost  thereof:  Kohr  v.  Baker, 
13  Or.  350. 

No  recovery  can  be  had  for  an  act  voluntarily  done  for 
the  benefit  of  another  without  his  request,  unless  he 
subsequently  promise  to  pay:  Glenn  v.  Savage,  14  Or. 
567. 

Voluntary  payment  of  the  debt  of  another  does  not  create 
a  cause  of  action  in  favor  of  the  person  so  paying:  Wil- 
liams &  Co.  V.  Miller  &  Co.,  1  W.  T.  88. 

Bare  possession  of  anything  of  value,  of  which  exclusive 
possession  may  possibly  and  lawfully  be  had,  is  prop- 


Contracts.  135 

Contracts  (continued). 

erty,  and  ordinarily  its  transfer  or  relinquishment  is 
consideration  for  a  contract:  Burch  v.  McDaniel  and 
Johnson,  2  W.  T.  58. 
2.  Construction. 

Agreement  in  writing  for  sale  of  articles  to  be  counted  out 
and  delivered  at  future  day  is  a  contract  to  sell,  and  is 
not  a  sale:  Lownsdale  v.  Hunsaker,  2  Or.  101. 

Mere  agreement  to  sell  land  does  not  constitute  a  license 
to  purchaser  to  enter:  Lee  v.  Summers,  2  Or.  260. 

Resei-vation  in  sale  of  ferry  franchise  for  free  ferriage  for 
grantor  and  his  family  construed  to  allow  grantee  free 
ferriage  for  his  employees  in  any  ordinary  business: 
Stephens  v.  Knott,  2  Or.  304,  overruling  S.  C,  3  Or. 
50. 

In  construing  a  grading  contract  with  city,  estimate  for 
excavation  therein  contained  is  prima  facie  correct  as 
set  forth:  Northrop  v.  Portland,  3  Or.  258. 

Contract  to  sell  a  farm,  a  town  lot,  and  certain  personal 
property  for  gross  sum  is  not  a  severable  contract: 
Banks  v.  Crow,  3  Or.  477;  Scheland  v.  Erpelding,  6 
Or.  258. 

Whether  entire  or  separable  depends  on  intention,  which 
is  discovered  from  the  language:  Southwell  v.  Beezley, 
5  Or.  458. 

Warranties  and  representations  in  application  for  life  in- 
surance defined  and  construed:  Buford  v.  N.  Y.  Life 
Ins.  Co.,  5  Or.  334. 

Contract  for  street  improvement  with  a  city,  held  not  to 
limit  the  city  s  liability  to  pay,  to  amount  realized  from 
assessments  on  abutting  property:  Frush  v.  City  of 
East  Portland,  6  Or.  281. 

Agreement  conveying  land,  mill,  etc.,  held  to  passjsyhat- 
ever  is  necessary  for  full  enjoyment  of  mill  privilege, 
and  to  permit  raising  the  dam  higher:  Brugger  v.  But- 
ler, 6  Or.  459. 

It  is  for  a  court  to  construe  a  written  agreement  offered  in 
evidence,  not  the  jury:  State  v.  Moy  Looke,  7  Or.  54. 

Parol  evidence  may  connect  the  language  of  the  written 
contract  with  subject-matter  thereof  indefinitely  ex- 
pressed: Hannah  v.  Shirley,  7  Or.  115. 

Contemporaneous   written    agreements    concerning    the 


136  Contracts. 

Contracts  (continued;. 

same  matter  are  to  be  construed  together:  Dean  v.  Lan- 
ham,  7  Or.  422;  Kruse  v.  Prindle,  8  Or.  158. 

Contract  to  cut  and  deliver  a  quantity  of  logs,  to  be  scaled 
and  received  in  certain  lots,  held  severable:  Tenny  v. 
Mulvaney,  8  Or.  129. 

Promise  to  pay  for  services  rendered  by  pauper  or  rela- 
tive taken  into  the  family  is  not  implied:  Bennett  v. 
Stephens,  8  Or.  444. 

Subsequent  agreement  to  pay  such  person  entitles  her  to 
recover  reasonable  value:  Id. 

Purchase  of  oats,  not  separated  or  identified,  to  be  deliv- 
ered, held  an  executory  contract:  Hubler  v.  Gaston 
and  Furry,  9  Or.  66. 

Where  true  import  of  the  writing  is  doubtful,  it  is  con- 
strued most  strongly  against  the  person  using  the  lan- 
guage, in  favor  of  one  who  has  advanced  money  thereon: 
McFadden  v.  Friendly,  9  Or.  222. 

Time  held  to  be  the  essence  of  a  contract  giving  broker 
commission  to  sell  land  in  certain  time:  Watson  v. 
Brooks,  11  Or.  271. 

Contract  to  sell  realty  and  retain  all  the  proceeds  above  a 
certain  sum,  as  commission,  does  not  create  a  power 
coupled  with  an  interest:  Simpson  v.  Carson,  11  Or. 
361. 

Contract  of  guaranty  and  to  indemnify,  and  contract  of 
sale,  both  made  the  same  day,  are  to  be  construed 
together:  Hildebrand  v.  Bloodsworth,  12  Or.  75, 

Word  "  sold  "  construed  as  "  contracted  to  sell  "  in  con- 
tract:  Id. 

Offer  by  letter  need  not  be  expressed  in  apt  words  of  con- 
tract; any  language  from  which  the  terms  can  reason- 
ably be  implied  is  sufficient:  Fisk  v.  Henarie,  13  Or. 
156. 

Numbers  of  letters  on  the  subject  having  passed  between 
the  parties,  which  leave  the  intention  uncertain,  evi- 
dence of  prior  .understanding  of  the  parties  is  admis- 
sible in  constrning:   Id. 

When  the  language  of  the  contract  will  admit  of  it,  jus- 
tice and  convenience  incline  to  the  construction  of  a 
simultaneous  performance:  Powell  v.  D.  S.  &  G.  R. 
R.  R.  Co.,  14  Or.  356. 


Contracts.  137 

Contracts  (continued).  , 

Rights  of  parties  under  a  contract  for  leasing  a  band  of 
sheep,  where  assignments  were  made  of  various  inter- 
ests, and  liens  claimed  for  advances  under  the  contract: 
Beezley  v.  Crossen,  14  Or.  473. 
Clause  respecting  interest  being  ambiguous,  court  rejected 
it  in  construing,  rather  than  allow  greater  rate  than  the 
legal:  Hazard  v.  Maxon,  1  W.  T.  585. 
Where,  without  doing  violence  to  the  language,  an  agree- 
ment is  open  to  two  interpretations,  the  one  being  fair 
to  both  parties,  the  other  to  but  one  party,  the  former 
will  be  preferred:  Ilawley,  Dodd,  &  Co.  v.  Kenoyer,  1 
W.  T.  609. 
Contract  for  sale  of  land  upon  payment  by  the  vendee  of 
certain  sums,   construed    as  giving  vendor  option  on 
default  of  vendee  to  tender  deed  and  sue  for  the  money 
or  to  foreclose  the  rights  of  the  vendee  under  the  con- 
tract: Wood  V.  Mastick,  2  W.  T.  64. 
3.  Conditions  and  Dependent  Covenants. 

Before  obligee  can  sue  on  contract  to  deliver  him  lumber 
of  such  dimensions  as  he  may  direct,  he  must  allege 
and  prove  that  he  gave  his  obligor  the  necessary  direc- 
tions: Baker  v.  Stoughton,  1  Or.  227. 
Agreement  to  be  liable  in  certain  contingency  is  not  to  be 
held    to  include    contingency  not   named:    Failing   v. 
Osborne,  3  Or.  498. 
Stipulation  upon  giving  note  that  note  is  on  condition  of 
transfer  to  maker  of  a  machine  on  maturity,  held,  that 
the  transfer  of  the  machine  was  not  a  condition  prece- 
dent: liawley  v.  Bmgham,  6  Or.  76. 
Delivery  of  personalty  under  an  agreement  for  hiring  at 
certain  installments  until  the  full  price  is  so  paid  does 
not  constitute  a  sale,  and  property  does  not  pass^  until 
full   payment:    Singer  Mfg.  Co.  v.  Graham,  8  Or.  17; 
Rosendorf  v.  Hirschberg,  8  Or.  240. 
Delivery  of  written  contract  not  under  seal  may  be  shown 
to  have  been  conditional  by  parol:   Simpson  v.  Carson, 
11  Or.  361. 
Covenants  to  purchase  certain  property  on  or  before  five 
years,  and  that  on  such  payment  the  other  party  will 
make  good  and   sufficient  deed,  are  dependent  cove- 


138  Contracts. 

Contracts  (confirmed). 

nants:   Powell  v.  D.  S.  &  G.  R.  R.  R.  Co.,  12  Or.  488; 

S.  C,  14  Or.  356. 
Bill  of  sale  of  a  vessel  containing  an  express  condition 

not  to  run  on  certain  routes,  held,  that  the  condition 

was  not  a  covenant,  nor  could  it  be  shown  to  have  been 

so  intended  by  parol  testimony:   Hale  v.  Finch,  1  W. 

T.  5G6. 
Contract  to  pass  title  to  chattel  after  payment  of  its  pur- 

.chase  price  is  by  law  regarded  as  if  it  read  upon  such 

payment:   Hawley,  Dodd,  &  Co.  v.  Kenoyer,  1  W.  T. 

609. 
The  promise  on  the  one  part  cannot  be  enforced  until  that 

on  the  other  part  is  performed:  Id. 
Such  contract  contains  two  mutual  interdependent  prom- 
ises, the  one  being  in  consideration  of  the  other,  and 

conditional  upon  its  performance:  Id. 
4.  Validity. 

Note  made  on  Sunday  is  void,  but  subsequent  promise  Is 

sufficient  to  sustain  assumpsit:   Smith  v.  Case,  2  Or. 

190. 
Separable  contract,  in  part  bad,  may  be  enforced  as  to 

valid  part:  Murray  v.  Oliver,  3  Or.  539;  Southwell  v. 

Breezley,  5  Or.  458. 
Agreement  to  substitute  another  agreement  is  void,  unless 

carried   into  execution,  and  accepted  as  satisfaction: 

Smith  V.  Foster,  5  Or.  44. 
Agreement  to  convey  land  to  agent  of  railway  in  consid- 
eration of  his  selecting  certain  route  longer  than  one 

already  surveyed,  void:    Holladay  v.  Patterson,  5  Or. 

177. 
Forbearance   on   such   agreement    no   consideration    for 

promissory  note:  Oregon  etc.  R.  R.  Co.  v.  Potter,  5  Or. 

228. 
Notwithstanding   constitutional  provision,  husband  and 

wife  cannot  contract  with  each  other:  Elfelt  v.  Ilinch, 

5  Or.  255. 
Contract  of  foreign  banking  corporation,  which  has  not 

recorded  its  power  of  attorney  in  the  state,  is  void,  and 

cannot  be  enforced  by  the  corporation:  Bank  of  British 

Columbia  v.  Page,  6  Or.  431. 


Contracts.  139 

Contracts  (continued). 

Promise  of  putative  father  to  support  bastard,  void  for 
want  of  consideration:   Nine  v.  Starr,  8  Or.  49. 

Wagers  on  elections  are  void  as  against  public  policy: 
Willis  V.  Hoover,  9  Or.  418. 

Promise  to  clerk  to  pay  illegal  fees  is  void,  and  cannot 
be  enforced:  Jackson  v.  Siglin,  10  Or.  93. 

Agreement  in  writing,  and  signed,  but  intended  and  con- 
sidered as  a  mere  form  for  an  ulterior  purpose,  is  not 
binding,  and  parol  proof  is  admissible  to  show  the  facts: 
Branson  v.  Orcgonian  R'y  Co.,  11  Or.  161. 

City  cannot  subsequently  modify  a  valid  contract  en- 
tered into  for  improvement  of  street,  but  after  verdict, 
a  complaint  alleging  such  modification,  denied  by  an- 
swer, will  be  held  good:  N.  P.  L.  &,  M.  Co.  v.  East 
Portland,  14  Or.  3. 

Contract  not  to  run  steamboat  on  any  of  the  waters  of 
Oregon  or  California,  and  many  of  the  navigable  waters 
of  Washington  Territory,  is  void  as  against  public  policy: 
O.  S.  N.  Co.  V.  Itale,  1  W.  T.  283. 

Indians'  contracts  are  valid  as  those  of  any  other  alien, 
excepting  executory  contracts  for  the  payment  of  money 
or  goods  paid  or  furnished  by  the  United  States  to  any 
tribe  pursuant  to  treaty,  prohibited  by  act  of  Congress: 
Gho  V.  Julles,  1  W.  T.  325. 

If  the  parties  to  a  contract  do  not  fix  on  a  time  for  its 
performance,  and  the  law  cannot  presume  a  time,  the 
contract  is  void  for  uncertainty  in  that  respect:  Hawley, 
Dodd,  ct  Co.  V.  Kenoyer,  1  W.  T.  609. 

Contract  within  the  statute  of  frauds  containing  mutual 
promises,  signed  by  but  one  of  the  parties,  does  not 
bind  party  not  signing:  Id. 

Contracts  for  the  sale  of  soldiers'  additional  homestead 
scrip  are  contrary  to  the  policy  of  the  act  of  Congress, 
and  void:  Macintosh  v.  Kenton,  2  W.  T.  121*. 
5.   Performance,  and  Waiver  of. 

Agreement  to  convey  free  of  encumbrances,  grantor  must 
put  of  record  releases  of  any  mortgages  or  other  liens 
before  ho  can  tender  deed:  Knighton  v.  Smith,  1  Or. 
276. 

Refusal  to  comply  with  contract  on  a  ground  stated  is  a 
waiver  of  all  other  objections:  Id. 


140  CONTKACTS. 

Contracts  (continued). 

Defendant  need  not  prove  demand  for  performance  where 
consideration  fails  or  plaintff  has  put  it  out  of  liis  power 
to  perform  the  agreement:  McClane  v.  Thomas,  1  Or. 
288. 

Vendor  must  tender  deed,  and  vendee  must  tender  price 
and  make  demand,  before  action  lies:  Roberts  v.  Car- 
land,  1  Or.  353;  Powell  v.  D.  S.  &  G.  R.  R.  R.  Co.,  12 
Or.  488;  S.  C,  14  Or.  356. 

Mere  readiness  to  pay,  without  tender  and  refusal  to  ac- 
cept, insufficient:  Smith  v.  Foster,  5  Or.  44;  Powell  v. 
D.  S.  &  G.  R.  R.  R.  Co.,  12  Or.  488;  S.  C,  14  Or.  356. 

Tender  of  performance  must  be  made  on  the  day,  on  con- 
tract to  exchange  land,  or  other  party  may  elect  to  re- 
quire money  consideration  and  sue  for  same:  Shattuck 
V.  Smith,  5  Or.  125. 

Time  is  not  the  essence  of  contract  to  convey  at  future 
day,  unless  clearly  intended:  Knott  v.  Stephens,  5  Or. 
235;  Snider  v.  Lehnherr,  5  Or.  385. 

Where  time  is  not  material,  either  party  may  enforce  by 
tendering  execution  on  his  part:  Id. 

Where  time  is  the  essence,  injured  party  may,  at  his  elec- 
tion, of  his  own  motion,  rescind:  Id. 

Personal  indignities,  etc.,  may  be  sufficient  to  prove  breach 
of  contract  to  support  infirm  person:  Tippin  v.  Ward, 
5  Or.  450. 

When  breach  occurs  by  fault  of  party  to  be  liable,  de- 
ferred payments  become  due  at  once:  Monroe  v.  N.  P. 
Coal  Mining  Co.,  5  Or.  509. 

Title  being  defective  and  there  being  an  encumbrance  on 
the  land,  contract  to  convey  is  not  performed  by  tender 
of  warranty  deed:  Collins  v.  Delashmutt,-6  Or.  51. 

Where  title  is  derived  through  unrecorded  deed,  title  is 
defective,  and  vendee  need  not  accept:  Id. 

To  excuse  performance  by  reason  of  new  agreement,  such 
agreement  must  have  been  entered  into  and  accepted 
in  satisfaction  and  extinguishment  of  former  contract: 
Watson  V.  Janion,  6  Or.  137. 

False  representations,  as  an  excuse,  must  have  been  re- 
lied upon,  and  actually  misled  defendant:  Dunning  v. 
Cresson,  6  Or.  241. 

Where  one  party  violates,  he  cannot  avail  himself  of  the 


Contracts.  141 

Contracts  (continued). 

contract  against  the  others,  and  the  latter  may  consider 
the  contract  rescinded:  Scheland  v.  Erpelding,  6  Or. 
258. 

Offer  in  writing  to  pay  is  suflBcient  tender  if  declined,  and 
such  tender  will  operate  to  discharge  a  lien  upon  per- 
sonalty by  chattel  mortgage:   Bartel  v.  Lope,  6  Or.  321. 

Vendor  need  not  remove  heavy  machinery  from  his  shop 
to  tender  it  at  place  of  delivery,  when  vendee  fails  to 
perform  or  put  himself  in  readiness  to  receive:  Smith 
Bros.  V.  Wheeler,  7  Or.  49. 

Actual  delivery  in  such  case  is  not  necessary  before  suit: 
Id. 

When  plaintiff  in  breach  of  promise  case  need  not  allege 
or  prove  her  demand  for  performance:  Lahey  v.  Knott, 
8  Or.  198. 

Allegation  that  the  work  "was  performed  according  to 
contract"  is  sufficient  allegation  of  performance  of  con- 
dition under  the  Code:  Griffin  v.  Pitman,  8  Or.  342. 

Performance  not  alleged  in  complaint  but  alleged  in  an- 
swer, complaint  is  sufficient  after  verdict:  Turner  v. 
Corbett,  9  Or.  79. 

Agreement  by  railroad  company  to  pay  certain  sums  by 
carriage  of  freight  and  passengers,  being  rendered  im- 
possible by  the  company  by  selling  the  road,  becomes 
at  once  due  in  money:  Branson  v.  Oregon  Il'y  Co.,  10 
Or.  278. 

Tender  in  writing  must  be  coupled  with  present  ability 
to  perform:  Ladd  and  Tilton  v.  Mason,  lU  Or.  308. 

Grantee  of  legal  title  of  land  as  security  for  payment  must 
tender  reconveyance  before  suing  for  the  debt:  Wolcott 
V.  Madden,  10  Or.  370. 

Breach  of  contract  to  build  where  owner  reserved  rurht  to 
make  certain  alterations  in  the  plans:  Savage  v.  Glenn, 
10  Or.  440. 

Where  time  was  the  essence  of  a  contract  allowing  broker 
to  sell  real  property,  and  a  purchaser  is  produced  on  the 
last  day,  but  who  demands  time  to  examine  title,  there 
is  no  performance:  Watson  v.  Brooks,  11  Or.  271. 

When  real  estate  broker  brings  purchaser  according  to 
the  terms  offered,  he  earns  his  commission:  Fisk  v. 
Henarie,  13  Or.  156. 


142  Contracts. 

Contracts  (continued). 

Owner  of  lands  having  offered  by  letter  to  broker  sale  at 
certain  terms,  performance  according  to  the  terms  oper- 
ates as  an  acceptance,  without  formal  written  answer: 
Id. 

Where  one  gave  his  note  for  one  thousand  dollars  cur- 
rency, and  received  from  the  payee  a  contract  that  it 
should  be  valued  at  five  hundred  dollars  if  paid  in  coin, 
the  note  could  not  be  dischaged  by  the  payment  of  five 
-hundred  dollars  in  currency,  and  the  contract  was  a 
condition  to  be  complied  with,  to  be  available:  West- 
brook  V.  Chapman,  1  W.  T.  227. 
6.   Rights  and  Remedies. 

An  agreement  tending  to  lead  persons  charged  with  a 
trust  to  betray  it  will  not  be  enforced:  Ilolladay  v. 
Patterson,  5  Or.  177. 

County  is  not  liable  upon  implied  contract  to  pay  for  im- 
provements voluntarily  put  upon  highway  or  bridge  by 
private  person:  Springfield  Milling  Co.  v.  Lane  County, 
5  Or.  265. 

On  breach  by  one  party,  the  other  need  not  specify  in  his 
notice  of  rescission  the  breaches  relied  on:  Collins  v. 
Delashmutt,  6  Or.  51. 

Failure  to  comply  with  contract,  except  for  voluntary 
abandonment,  does  not  preclude  recovery  for  reason- 
able value  of  what  has  been  done:  Steeples  v.  Newton, 
7  Or.  110;  Tribou  v.  Strowbridge,  7  Or.  15G;  Todd  v. 
Huntington,  13  Or.  9. 

Damages  specified  and  liquidated  by  the  terms  of  the  con- 
tract exclude  all  others:  Lung  Louis  &  Co.  v.  Brown, 
7  Or.  326. 

Conveyance  in  consideration  of  support  will"  afibrd  ground 
for  relief  to  grantor  by  enforcing  the  contract  and  char- 
ging the  land  with  such  support:  Watson  v.  Smith,  7 
Or.  448. 

Agreement,  partly  executed,  to  divide  stream  of  water  be- 
tween land-owners  may  be  enforced  in  equity,  though 
not  in  writing:  Coffman  v.  Robbins,  8  Or.  278. 

Violation  of  contract  with  city,  wherein  employment  of 
Chinese  was  prohibited  or  contract  to  be  void,  operates 
as  forfeiture,  and  city  need  not  resort  to  equity  to  an- 
nul: Portland  v.  Baker,  8  Or.  356. 


Contracts.  143 

Contracts  (continued). 

Money  paid  on  illegal  contract  may  be  recovered  before 
the  contract  is  executed,  but  otherwise  where  the  action 
operates  as  an  affirmance  of  an  executed  contract:  Wil- 
lis V.  Hoover,  9  Or.  418. 

Wlicre  liability  is  joint  and  several,  judgment  at  any 
stage  of  the  action  may  be  rendered  against  some  of 
the  defendants,  and  the  action  proceed  as  against  other 
defendants:  Sears  v.  McCrew,  10  Or.  48. 

Person  electing  to  sue  his  bailee,  who  has  wrongfully 
pledged  the -former's  goods,  on  the  contract  cannot  re- 
cover for  the  conversion:  Nichols  v.  Gage,  10  Or.  82. 

Person  relying  on  contract  of  married  woman  must  allege 
and  prove  it  to  have  been  made  within  hor  powers  to 
contract  as  a  married  women:  Wells  v.  Applegate,  10 
Or.  519. 

When  A,  for  a  valuable  consideration,  agrees  with  B  to  pay 
his  debt  to  C,  the  latter  can  enforce  the  contract  against 
A:  Baker  and  Smith  v.  Eglin,  11  Or.  333. 

A  party  for  whose  benefit  a  contract  is  made  can  sue  on 
it  though  it  be  under  seal:  Hughes  v.  Oregon.  R'y  & 
Nav.  Co.,  11  Or.  437;  Schneider  v.  White,  12  Or.  503. 

Demand  not  necessary  in  suing  for  reasonable  worth  of 
services:  Gibbs  v.  Davis,  11  Or.  288. 

In  case  of  concurrent  and  dependent  covenants,  party  al- 
leging breach  must  allege  a  tender  of  performance  at 
the  time  on  his  own  part:  Powell  v.  D.  S.  &  G.  R.  R. 
R.  Co.,  12  Or.  488;  S.  C,  14  Or.  356;  Hawley,  Dodd, 
&  Co.  V.  Kcnoyer,  1  W.  T.  609. 

Upon  a  consideration  moving  from  a  third  party,  the 
promisor  may  be  compelled  by  the  promisee  to  per- 
form, though  the  latter  did  not  know  of  the  promise 
when  made:  Baker  and  Smith  v.  Eglin,  11  0l_333; 
Hughes  V.  Or.  R'y  &  Nav.  Co.,  11  Or.  437;  Schneider 
v.  White,  12  Or.  503;  Strong  v.  Kamm,  13  Or.  172. 

Stranger  performing  work  on  another's  contract,  without 
the  hitter's  knowledge,  by  mistake,  cannot  recover  the 
value  from  the  latter:  Rohr  v.  Baker,  13  Or.  350. 

Acceptance  of  lumber  under  special  contract  precludes 
defense  on  the  ground  of  its  unmerchantable  charac- 
ter, or  its  being  different  from  that  contracted  for:  Wil- 
liams &  Co.  V.  Miller  &  Co.,  1  W.  T.  88. 

Rights  and  remedies  of  consignee  against  carrier,  on  re- 


144  Contracts. 

Contracts  (continued). 

ceiving  goods  damaged  in  transit:  Williams  v.  Steam- 
ship Columbia,  1  W.  T.  95. 

The  right  to  make  a  valid  contract,  which  an  Indian  pos- 
sesses, draws  after  it  the  liability  to  be  sued:  Gho  v. 
Julles,  1  W.  T.  325. 

No  action  can  be  maintained  on  a  transfer  of  a  contract  to 
furnish  supplies  to  the  United  States,  such  transfer  be- 
ing forbidden  by  law:  Turnbull  and  Jones  v.  Farns- 
-worth,  1  W.  T.  444. 

Party  suing  for  a  right  acquired  under  a  contract  is  pre- 
sumed to  have  accepted  under  the  contract  what  it  was 
his  interest  to  accept:  Bullene  v.  Garrison,  1  W.  T.  587. 

Rights  and  remedies  of  vendee  of  chattels  on  breach  of 
warranty  of  title:  Baker  and  Hamilton  v.  McAllister,  2 
W.  T.  48. 

Such  vendee  may  pay  off  liens  against  the  goods,  and  off- 
set same  against  purchase  price:  Id. 

Unlicensed  liquor  dealer  cannot  sue  for  damages  for  breach 
of  contract  to  furnish  him  liquor  to  sell  in  violation  of 
license  law:  Bach,  Messe,  &  Co.  v.  Smith,"  2  W.  T.  145. 
Contribution.     See  Suretyship;  Warehousemen. 
Conversion. 

Complaint  in  conversion  held  insuflBcient  to  sustain  judg- 
ment: Johnson  v.  Oregon  Steam  Nav.  Co.,  8  Or.  35. 

Defendants  jointly  liable,  judgment  against  both  must  be 
given  on  general  verdict:  Cauthorn  v.  King,  8  Or.  138. 

In  an  action  against  a  sheriff  for  tax  money  converted  to 
his  own  use,  the  fact  that  he  was  sheriff,  and  that  he 
received  money  from  individual  tax-payers,  is  admis- 
sible evidence:  State  v.  Dale,  8  Or.  229. 

Money  collected  for  taxes  by  sheriff  is  public  money 
belonging  to  the  county,  for  the  conversion  of  which  he 
may  lie  indicted  under  section  559,  Criminal  Code 
(sec.  1772,  Hill's  A.  L.):  Id. 

Special  damages  must  bo  pleaded;  what  arc  special  dam- 
ages in  conversion:  Salmon  v.  Olds  and  King,  9  Or.  448. 

Instructions  on  special  damages  irrelevant  where  such 
damages  not  pleaded:  Id. 

Agent  is  liable  for  conversion  when  he  pledges  his  prin- 
cipal's goods  for  liis  own  debt:  Nichols  v.  Gage,  10  Or.  82. 

Plaintiff  electing  to  sue  on  the  contract  cannot  recover  as 
for  the  conversion:  Id. 


Conversion.  145 

Conversion  (continued). 

Statute  of  limitations  begins  to  run  at  time  of  conversion, 
and  action  must  be  begun  within  six  years:  Sheppard 
V.  Yocum  and  De  Lashmutt,  10  Or.  402. 

Conversion  of  school  funds  by  commissioners;  suit  for  an 
accounting:  State  v.  Chadwick  and  Brown,  10  Or.  425. 

Mingling  wheat  with  other  wheat  of  same  quality  is  not 
a  conversion  by  a  warehouseman:  Sears  v.  Abrams,  10 
Or.  499. 

Conversion  defined:  Ramsby  v.  Beazley,  11  Or.  49;  Budd 
v.  Multnomah  St.  R'y  Co.,  12  Or.  271. 

Kot  necessar}'  to  maintain  trover  that  defendant  has 
actual  or  virtual  possession  of  the  property:  Id. 

Conversion  by  sheriff;  plea  of  justification  under  a  levy 
must  allege  ownership  in  the  debtor:  Krewson  v.  Pur- 
dom,  11  Or.  266. 

In  action  for  conversion  b}'  Indian  agent  in  seizing  a 
team  transporting  liquor  within  a  reservation,  what  is 
a  justification:  Webb  v.  Nickerson,  11  Or.  382. 

Subsequent  return  of  the  team  to  a  person,  not  the  one  in 
possession  at  the  time  of  seizure,  claiming  the  owner- 
ship, is  not  an  admission  of  wrongful  taking:   Id. 

Trover  will  lie  for  the  conversion  of  shares  of  slock  in  a 
corporation:  Budd  v.  Multnomah  St.  R'v  Co.,  ]2  Or. 
271. 

Defendants  sued  for  joint  tort  are  liable  only  when  the 
conversion  is  proved  to  have  been  committed  jointly: 
Dahms  v.  Sears,  13  Or.  47. 

Sheriff  and  different  attaching  creditors  arc  not  liable 
jointly  for  several  conversions  in  taking  and  attaching 
money  of  a  prisoner:  Id. 

Plea  of  title  in  a  third  person  in  an  answer  is  not  new 
matter,  and  simply  controverts  allegations  of  ownersliip 
in  complaint:  Krewson  <t   Co.  v.  Purdom,  13  Or.  563. 

But  quasre,  whether  such  fact  can  be  proved  under  mere 
denial  of  plaintiff's  title:  Id. 

Possession  is  sufficient  evidence  of  title  to  maintain  con- 
version:  Id. 

But  semble,  that  possession  alone  is  not  sufficient  to 
authorize  recovery  of  value,  unless  it  be  an  actual  hold- 
ing under  claim  of  right:   Id. 

Sheriff  having  levied  on  personal  property  as  belonging 
Or.  Dig.— 10 


146  Conversion, 

Conversion  (continued). 

to  one    person  may  defend    in  action   by    another  by 
showing  the  property  belongs  to  a  third  party:  Id. 

Person  sued  by  administrator  for  wrongfully  taking  goods 
of  an  estate  may  show  in  mitigation  of  damages  that  he 
used  the  proceeds  to  pay  the  debts  of  the  estate:  Ruther- 
ford V.  Thompson,  14  Or.  236. 

Different  persons  taking  grain  from  warehouse  at  different 
times  without  concert  of  action  cannot  be  joined  in  an 
action  for  conversion:  Cooper  v.  Blair,  14  Or.  255. 

Mortgagee  of  chattels  may  maintain  trover  against  an  as- 
■signee  attempting  to  dispose  ol  them  contrary  to  the 
stipulations  of  the  mortgage:  Case  T.  M.  Co.  v.  Camp- 
bell, 14  Or.  460. 

In  such  action  plaintiff  need  not  show  the  amount  due 
him;  sufficient  if  he  prove  his  qualified  ownership  and 
the  com'ersion:  Id. 
Conversations.     See  Evidence. 
Conveyances.     See  Deeds;  Mortgages. 
Coroners. 

No  stated  fee  for  summoning  jury:  Cook  v.  Multnomah 
County,  8  Or.  170. 

County  Court  has  po^^er  to  fix  such  fees,  which  power  is 
diFcretionary.  and  not  subject  to  review:  Id. 

Statute  of  1854,  allowing  coroners  in  certain  instances  to 
perform  the  duties  of  sheriff,  is  still  in  force:  Rodolph 
V.  Mayer,  1  W.  T.  133. 

Record  showing  process  to  have  been  served  by  coroner, 
the  court  will  presume,  in  the  absence  of  a  contrary 
showing,  that  the  sheriff  was  laboring  under  some  of 
the  disabilities  that  make  it  incumbent  upon  the  coro- 
ner to  act  in  his  stead:  Id. 
Corporations.  See  Common  Carriers;  Eminent  Domain; 
Muiiicipal  Corporations;  Railroads. 

1.  Nature  and  Organization. 

2.  Powers  and  Liabilities. 

3.  Officers  and  Agents. 

4.  Stock  and  Stockholders. 

5.  Dissolution. 

1.   Nature  and  Organization. 

School  districts  are  public  corporations,  and  their  corpo- 
rate existence  can  only  be  annulled  as  provided  by  law 


Corporations.  j4'7 

Corporations  (continued). 

under  sect.or*  352  of  the  Code  (see.  355,  Hill's  A.  L)• 
btate  v.  Hulin,  2  Or.  306. 
Before  organization    completed,  corporation   can   receive 
subscriptions  and   sue  on  stock    assessments:    Oregon 
Central  R.  R.  Co.  v.  Scoggin,  3  Or.  161 
Organization  by  the  corporation  subscribing  for  the  ma- 
jority of  Its  stock  is  a  nullity:  Ilolladay  v.  Elliott,  8 

Corporations  in  organizing  have  no  power  to  make  regu- 
lations disposing  of  future  profits,  except  by  the  articles 
of  mcorporation:  Coyote  G.  &  S.  M.  Co.  v.  Ruble,  8  Or. 

Corporators  may  receive  and  hold  property  for  the  use  of 

the  corporation  to  be  formed:  Id 
Constitution  does  not  prohibit  establishing  of  banks  not 

^suing  bills  and  notes  to  circulate  as  money:  State  v. 

H.  fe.  &  L.  A.,  8  Or.  396. 

Board  of  directors  of  the  state  university  are  a  corporation 
and  may  be  sued  without  joining  the  state:  Dunn  v 
btate  University,  9  Or.  357. 
Counties  are  corporations,  and  may  sue  and  be  sued: 
Crossen  v.  Wasco  County,  10  Or.  111. 
2.  Powers  and  Liabilities. 
Must  execute  its  deed  with  corporate  seal,  which  may 
however    be  a  scroll  seal:  Eagle  Woolen  Mills  Co.  v.' 
Monteith,  2  Or.  277. 

Co„r  may^Buo  his  corporation:  MUIer  v.  Oregon  City 

^ZV"  Tul '"''  ™"'"*  ^"t-^oriP'io"'  and  assessments 
on  stock  before  complete  organizutiou:  Oregon  Central 
K.  K.  Co.  V.  Scoggin,  3  Or.  101 

t  b::;:;!!  oriTor™"""  ^"«"°  ""^^^'^-^  '^•&^- 

Corporation  organized  to  transport  on  river  and  its  port- 
ages  ,s  not  hmited  to  one  side  of  river  at  portage    Id 

ness   IS   not  hable   to   condemnation;    but  it  has  no 


148  Corporations. 

Corporations  (continued). 

Power  to  purchase  land  was  incident  to  corporations  at 
common  law:  Kelly  v.  People's  Trans.  Co.,  3  Or.  189. 

What  is  meant  by  power  over  property  "  necessary  and 
convenient "  to  effect  object:  Id. 

Corporation  organized  to  make  and  sell  lumber  cannot 
hold  mechanic's  lien  for  labor  in  constructing  building: 
D.  L.  &  M.  Co.  V.  W.  W.  M.  Co.,  3  Or.  527. 

Orders  payable  to  bearer  issued  by  and  drawn  on  corpo- 
ration are  in  effect  its  promissory  notes,  and  are  not 
ultra  vires:  Fink  v.  Canyon  Road  Co.,  5  Or.  301. 

The  tendency  of  modern  decisions  and  presumptions  is  to 
assimilate  the  powers  of  private  corporations  to  those  of 
individuals  and  partnerships:  Id. 

Lial)le  on  simple  contracts  and  for  acts  of  their  agents  in 
the  discharge  of  their  duties:  Id. 

Corporation  owning  and  operating  canal  and  locks  and 
steamboats  thereon  under  state  franchise  is  subject 
to  reasonable  legislative  regulations  requiring  lists  of 
freight  and  passengers  passing  the  locks:  Board  of  Com- 
missioners V.  W.  Tran.  Co.,  6  Or.  219. 

Foreign  banking  corporations  cannot  transact  business  in 
Oregon  without  recording  a  power  of  attorney,  and  can- 
not enforce  a  contract  made,  unless  they  have  complied 
with  the  laws:  Bank  of  British  Columbia  v.  Page,  6  Or. 
431. 

Corporations  not  of  the  class  named  in  the  title  of  the  act, 
sections  7  and  8,  page  617,  Miscellaneous  Laws  (sec. 
3272,  Hill's  A.  L.),  are  not  required  to  file  a  power  of 
attorney  before  doing  business  in  Oregon:  Singer  M. 
Co.  v.  Graham,  8  Or.  17. 

Powers  of  corporation  to  appropriate  county  road  as  part 
of  its  toll  road:  D.  C.  R.  Co.  v.  C.  &  G.  R,  Co.,  8  Or.  102; 
C.  &  G.  Road  Co.  v.  Stephenson,  8  Or.  263. 

Proceedings  of  a  corporation  must  be  shown  by  its  records: 
Coyote  G.  &  S.  M.  C.  v.  Ruble,  8  Or.  284. 

Unauthorized  contract  may  be  subsequently  ratified  ex- 
pressly or  impliedly  by  the  corporation:  Branson  v. 
Oregonian  R'y  Co.,  10  Or.  278. 

Property  of  corporation,  not  dividends,  in  the  hands  of  a 
stockholder,  is  subject  to  execution  on  judgment  against 
corporation:  Hughes  v.  Oregonian  R'y  Co.,  11  Or.  158. 


Corporations.  149 

Corporations  (continued). 

Corporation  holds  its  property  in  trust  for  its  creditors 
and  stockholders:  Branson  v.  Oregonian  R'y  Co.,  11 
Or.  161. 

But  though  indebted,  may  sell  its  property;  and  pur- 
chaser in  good  faith  for  adequate  consideration,  know- 
ing its  indebtedness,  does  not  become  ciiorged  with 
payment  of  its  debts:  Id. 

Thc  taking  of  a  note  for  a  premium  in  Washington  Terri- 
tory, by  a  resident  agent  of  a  foreign  insurance  com- 
pany, is  "doing  insurance  business"  in  Washington 
Territory  by  such  company;  though  merely  receiving 
and  forwarding  an  application  for  insurance  for  accept- 
ance or  rejection  by  such  company  in  another  state  is 
not:  Ilacheny  v.  Leary,  12  Or.  40. 

Such  note  is  void,  where  the  company  has  not  complied 
with  the  statute  regulating  power  of  foreign  insurance 
companies:  Id. 

Principle  denying  corporation's  power  to  be  a  partner: 
Ilackett  V.  Multnomah  R'y  Co.,  12  Or.  124. 

Corf>oration  may  be  a  joint  owner  with  an  individual  in 
a  ferry  franchise,  and  be  entitled  to  an  accounting  for 
its  share  of  the  earnings:  Id. 

Corporation  has  no  powers  other  than  the  statute  confers, 
or  such  as  are  incidental:  Lakin  v.  Railroad  Co.,  13  Or. 
43G. 

Unless  specially  authorized  by  statute,  railroad  corpora- 
tion cannot  lease  its  road  and  so  escape  liability  for 
torts,  though  committed  by  the  lessee:  Id. 

Construction  company  having  control  of  and  operating 
railroad  for  the  owners,  the  latter  are  liable  for  injury 
occasioning  death,  though  the  use  of  the  road  was 
without  their  consent:  Id. 

Corporation  cannot  avail  itself  of  the  services  of  a  person, 
and  then  screen  itself  from  liability  on  the  groiTrrd  that 
it  never  passed  an  ordinance  on  the  subject:  Tyler  v. 
T.  ofT.  A.  &  P.  U.,  14  Or.  485. 

Railroad,  though  incorporated  under  a  special  act,  may 
proceed  to  condemn  lands  under  the  gentTal  ait  rilating 
to  corporations;  Cascades  R.  R.  Co.  v.  Louis  Sohns,  1 
W.  T.  557. 


150  Corporations. 

Corporations  (continued), 
3.     Officers  and  Agents. 

Directors  cannot  in  their  own  names  execute  deed  for  and 
in  behalf  of  corporation;  it  must  be  the  corporation's 
deed  executed  by  the  corporation:  Eagle  Woolen  Mills 
Co.  V.  Monteith,  2  Or.  277. 
President  is  proper  officer  to  confess  judgment  against  cor- 
poration if  duly  authorized:  Miller  v.  Bank  of  British 
Columbia,  2  Or.  291;  Miller  v.  Oregon  City  Mfg.  Co.,  3 
Or.  24. 
Director  not  bound  by  vote  of  majority  where  he  claims 
on  contract  against  the  corporation:  Hedges  v.  Strong, 
3  Or.  18. 
Fraud  of  directors  not  reviewed  in  equity  unless  there  be 
cause   for  removal   and   to  wind  up  the  corporation: 
Hedges  v.  Paquett,  3  Or.  77. 
If  not  prevented  by  the  by-laws,  directors  may  fix  their 
own  compensation,  and  may  pass  upon  other  questions 
in  which  the  individual  director  has  an  interest:  Id. 
But  such  acts  are  not  conclusive,  and  are  voidable,  not 
void,  and  one  who  seeks  to  set  them  aside  must  show 
injury:  Id. 
President  of  railroad  company  cannot  mortgage  locomo- 
tive under  corporate  seal  without   express  authority: 
Luse  v.  Isthmus  Transit  R'y  Co.,  6  Or.  125. 
Note  payable  to  "treasurer  of  Philomath  College"  inures 
to  the  benefit  of  the  corporation:  Philomath  College  v. 
Ilartless,  6  Or.  158. 
Deed  sealed  with  the  corporate  seal,  and  subscribed  by  the 
president  and  secretary,  declaring  that  they  subscribe  it 
for  the  corporation, passes  title:  Moore  v.  Willamette  T. 
&  L.  Co.,  7  Or.  359. 
Service  of  summons  on  agent  is  substituted  service,  and 
must  show  the  facts  which  confer  jurisdiction:    Caro 
Bros.  V.  O.  &  C.  R.  R.  Co.,  10  Or.  510. 
Person  cannot  be  the*  agent  of  a  corporation  in  making  a 
purchase  before  the  corporation  exists:  Kelly  v.  Ruble, 
11  Or.  75. 
Person  signing  note  with  his  name,  and  adding  "Pres."  or 
"Sec, "is  personally  bound:  Guthrie  v.Imbrie,  120r.  182. 
But  officers  signing  their  names  and  aflixing  corporate  seal 
with  tiie  name  of  the  corporation   thereon,  binds  the 
corporation:  Id. 


Corporations.  151 

Corporations  (continued). 

The  fact  that  the  same  person  acted  as  a  chairman  and 
secretary  of  meeting  of  board  of  trustees  will  not  invali- 
date the  proceedings:  Budd  v.  W.  W.  P.  &  P.  Co.,  2 
W.  T.  347. 

Not  essential  to  legalityl^f  an  unstated  meeting  of  trustees 
that  proof  of  notice  thereof  be  spread  upon  the  records, 
such  proof  may  be  supplied  aliunde:  Id. 

Until  the  contrary  appear,  such  meeting  will  be  presumed 
regularly  called:  Id. 

Fact  that  trustee  who  had  a  claim  against  corporation 
was  present  at  meeting  of  trustees  which  gave  the  note 
of  the  corporation  in  payment  will  not  render  the  note 
void:  Id. 

In  absence  of  statute,  trustee  can  contract  with  corpora- 
tion through  the  board  of  trustees,  though  he  is  present 
at  the  meeting:  Id. 
4.  Stock  and  Stockholdkrs. 

Corporation  may  receive  subscriptions  to  stock,  and  sue 
for  assessments  before  being  fully  organized:  Oregon 
Central  R.  R.  Co.  v.  Scoggin,  3  Or.  IGl. 

As  soon  as  one  half  of  the  stock  is  subscribed,  and  direc- 
tors elected,  stock  may  be  increased :  Willamette  Freight- 
ing Co.  v.  Stanuus,  4  Or.  2G1. 

Subscription  to  all  the  stock  is  unnecessary  before  assess- 
ments may  be  levied:  Id. 

Stockholder  present  and  assenting  to  adoption  of  by-law 
by  stockholders,  and  not  adopted  by  the  board  of 
directors,  levying  assessment,  is  estopped  to  deny  legal- 
ity of  the  levy:  Id. 

Entry  by  agent  of  name  of  principal  in  a  stock  list,  with- 
out subscribing  the  principal's  name  to  sul)Scription  list 
or  stock-book  by  him  as  agent,  does  not  bind  princii)al 
as  a  stockholder:  Grangers'  M.  Co.  v.  Vinson,  6  Or.  172. 

Where  a  bare  subscription  is  relied  on  to  show  a-Twrsoa 
a  stockholder,  the  subscription  itself  should  contain 
enough  to  show  his  intention  to  subscribe  for  the  stock: 
Grangers'  Market  Co.  v.  Vinson,  6  Or.  172;  Coyote  G. 
&  S.  M.  Co.  V.  Ruble,  8  Or.  2S4. 

Purchaser  is  liable  for  unpaid  balance  due  on  stock  pur- 
chased, when  duly  demanded  by  directors:  Bush  v. 
Cartwright,  7  Or.  329. 


152  Corporations. 

Corporations  (continued). 

Assignor  of  stock  is  liable,  when  after  due  demand  the 
purchaser  fails  to  pay  such  balance:  Id. 

Creditor  has  no  remedy  against  stockholder  until  his 
remedy  against  the  corporation  is  exhausted :  Id. 

Stockholder's  liability  is  in  equity,  where  all  creditors 
and  stockholders  may  be  made  parties:  Bush  v.  Cart- 
wright,  7  Or.  329;  Hodges  and  Wilson  v.  Silver  Hill 
Mining  Co.,  9  Or.  200. 

Stockholders  may  direct  the  sale  and  manner  of  selling 
the  realty  on  dissolution:  Moore  v.  Willamette  T.  &  L. 
Co.,  7  Or.  359. 

On  organizing,  corporation  cannot  subscribe  for  its  own 
stock:  Holladay  v.  Elliott,  8  Or.  84. 

Minority  of  stock  only  being  subscribed,  stockholders 
cannot  organize  and  elect  directors:  Holladay  v.  Elli- 
ott, 8  Or.  84;  Coyote  G.  &  S.  M.  Co.  v.  Ruble,  8  Or.  284. 

Person  may  be  a  corporator  who  is  not  a  stockholder:  Id. 

Stockholder  is  liable  for  assessment  only  when  the  records 
show  the  assessment  was  made  by  the  directors:  Id. 

Agreement  made  by  stockholder  before  organization  must 
be  adopted  by  the  corporation  or  the  directors  after 
their  election  to  become  binding:  Id. 

Subscription  to  half  the  stock  must  be  made  before  the 
corporation  can  be  organized:  Id. 

To  be  liable  as  a  stockholder  person  must  have  signed  or 
expressly  authorized  an  agent  to  sign  stock-book:  Id. 

Original  stockholders  are  made  liable  only  by  their  writ- 
ten subscriptions,  and  there  is  no  estoppel  between 
them:  Id. 

Agreement,  made  before  organization,  to  subscribe,  does 
not  authorize  directors  afterward  to  put  the  person's 
name  on  the  stock-list:  Id. 

In  action  by  corporation  to  recover  subscriptions,  condi- 
tions of  the  subscription  may  be  inquired  into,  and 
there  is  no  estoppel:  Id. 

Stockholder  purchasing  mining  property  for  the  corpora- 
tion may  be  held  a  trustee,  and  required  to  convey  to 
the  corporation:'  Id. 

Mandamus  does  not  generally  lie  to  compel  transfer  of 
stock  on  the  corporation  books:  Durham  v.  Monumental 
S.  M.  Co.,  9  Or.  41. 


Corporations.  153 

Corporations  (continued). 

Remedy  for  refusal  to  transfer  stock  on  the  stock-books  is 
by  action  at  law  for  damages:  Id. 

Stockholder  liable  in  equity  where  the  corporation  is  in- 
solvent, although  judgment  and  a  return  oi  nulla  bona 
is  not  obtained  against  the  corporation:  Ilodges  and 
•Wilson  V.  Silver  Hill  Mining  Co.,  9  Or.  2U0. 

Liability  of  stockholders  is  several  and  limited:  Id. 

Where  it  is  made  to  appear  that  some  are  insolvent,  the 
solvent  stockholders  must  pay  the  amount  of  liability 
of  the  insolvent:  Id. 

Liability  extends  only  to  those  who  are  or  have  been 
holders  of  the  legal  title  of  unpaid  stock:  Branson  v. 
Oregonian  R'y  Co.,  10  Or.  278;  S.  C,  11  Or.  161. 

Agent  purchasing  stock  and  taking  the  legal  title  thereto 
in  his  own  name,  for  the  benefit  of  his  principal,  must 
be  indemnified  by  the  latter  for  liabilities  thereon:  Id. 

Trover  lies  for  conversion  of  shares  of  corporate  stock: 
Budd  v.  Multnomah  St.  R'y  Co.,  12  Or.  271. 

In  a  suit  by  creditors  to  hold  stockholders  individually 
liable,  it  is  not  necessary  to  make  all  the  creditors  or 
all  the  stockholders  parties:  Brundage  v.  Mon.  G.  & 
S.  M.  Co.,  12  Or.  322. 

In  such  suit,  if  a  defendant  stockholder  wants  other  stock- 
holders made  defendants  he  must  bring  them  in  at  his 
own  expense,  by  answer,  or  other  proceeding:  Id. 

But  in  a  suit  to  wind  up  an  insolvent  cori^oration,  all  cred- 
itors and  stockholders  should  be  made  parties:  Id. 

Directors  owning  all  the  stock,  at  a  meeting  where  all 
were  present,  three  transferred  all  their  stock  to  the  re- 
maining two;  held,  purely  individual  transaction,  not- 
withstanding all  were  officers:  Mays  v.  Foster,  13  Or. 
214. 

In  the  absence  of  proof  to  the  contrary,  a  transfer  of  stock 
to  an  individual  cannot  be  held  to  be  a  transfeFlo  the 
company:  Id. 

Stockholder  subscribing  on  condition, to  take  advantage  of 
failure  to  comply  with  the  condition  should  promptly 
require  subscription  canceled:  Lee  v.  Imbrie,  13  Or. 510. 

Sucii  conditional  subscriber  may  be  held  liable  as  a  stock- 
holder, where  by  his  acts  he  has  waived  the  condition: 
Id. 


154  Corporations. 

Corporations  (continued). 

Unpaid  subscriptions  constitute  a  fund  upon  which  cred- 
itors can  rely:  Id. 
5.  Dissolution. 

Appeal  does  not  lie  from  refusal  of  Circuit  Court  to  grant 
leave  to  bring  action  to  vacate  charter:  State  v.  Oregon 
Central  R.  R.  Co.,  2  Or.  255. 

Consent  of  governor  necessary  to  authorize  proceeding  to 
annul  corporate  existence  of  school  district:  State  v. 
Hulin,  2  Or.  306. 

Remedy  is  by  action  in  the  name  of  the  state,  where  cor- 
poration usurps  franchises:  Kelly  v.  People's  Trans.  Co., 
3  Or.  189. 

The  dissolution  and  disposition  of  the  corporate  property 
is  controlled  by  the  stockholders:   Moore  v.  Willamette 
T.  &  L.  Co.,  7  Or.  359. 
Costs   and   Disbursements.      See   Attorneys;    Bills   and 
Notes;  Compensation;  Fees. 

1.  Allowance  of  Costs. 

2.  Taxation  of  Costs. 

3.  Rights  and  Remedies. 
1.    Allowance  of  Costs. 

If  plaintiff  fails  to  recover  fifty  dollars  in  an  action  for 
damages,  he  recovers  no  costs  unless  the  failure  results 
solely  from  counterclaim  or  set-off,  in  which  case  costs 
follow  the  judgment:  Roberts  v.  Carland,  1  Or.  382. 

Judgment  against  prosecuting  witness  for  costs  in  prelim- 
inary examination  before  magistrate  is  void:  McDonald 
V.  Crusen,  2  Or.  259. 

The  covenantee  under  a  deed,  in  action  on  the  covenant, 
having  been  ousted,  cannot  recover  for  costs  incurred 
by  him  in  defending  in  an  action  after  eviction:  Stark 
V.  Olney,  3  Or.  88. 

Allowance  discretionary,  where  on  appeal  from  Justice's 
Court,  less  is  recovered  than  the  judgment  obtained  be- 
low: Ilollister  v.  Ilagui,  3  Or.  319. 

Tender  must  be  made  before  suit  is  commenced,  to  carry 
costs:  Oregon  Central  R.  R.  Co.  v.  Wait,  3  Or.  428. 

Costs  can  in  no  action  at  law  be  awarded  to  both  parties: 
McDonald  v.  Evans,  3  Or.  474. 

Costs  in  an  action  of  replevin,  where  defendant  recovers 
part  of  the  goods:  Id. 


Costs  and  Disbursemexts.  155 

Costs  and  Disbursements  (continued). 

Costs  in  an  action  to  recover  real  property:  Crossman  v. 
Lander,  3  Or.  405. 

Cannot  be  allowed  to  either  party  in  contested  election 
case,  not  being  expressly  authorized  by  statute:^  Wood 
V.  Fitzgerald,  3  Or.  568. 

Trial  fee  must  be  paid  by.  appellant  on  appeal:  Bailey  v. 
Frush,  5  Or.  136. 

Upon  affidavit  that  party  is  not  able  to  pay,  trial  fee  is  not 
required:  Id. 

Court  may  dismiss  appeal  on  non-payment  of  trial  fee: 
Id. 

On  appeal  from  Justice's  Court,  section  542  (sec.  552, 
Hill's  A.  L.)  governs  costs,  and  section  539  (sec.  549, 
Hill's  A.  L.)  applies  only  to  cases  originally  begun  in 
Circuit  Court:  Nurse  v.  Justus,  6  Or.  75;  Burt  v.  Am- 
brose, 11  Or.  26. 

Under  subdivision  1  of  section  539  of  the  Code  (sec. 
549,  Hill's  A.  L.),  party  recovering  judgment  in  action 
for  nuisance,  where  the  title  and  right  of  possession  of 
realty  is  put  in  issue,  is  entitled  to  costs:  Bentley  v. 
Jones,  7  Or.  108. 

What  is  an  open  mutual  account,  Avithin  subdivision  3, 
section  539,  Civil  Code  (sec.  549,  Hill's  A.  L.),  relating 
to  costs:  Hay  den  v.  Waymire,  10  Or.  367. 

Plaintiff  in  replevin  on  appeal  from  County  Court  cannot 
recover  more  costs  than  damages  in  the  Circuit  Court, 
unless  he  prove  the  value  of  the  goods,  and  his  dam- 
ages to  be  greater  than  the  sum  of  fifty  dollars:  Burt 
V.  Ambrose,  11  Or.  26. 

Assignor  bringing  suit  for  an  accounting  against  his  as- 
signees is  not  entitled  to  costs,  unless  he  tenders  the 
balance  due  the  creditors:  Kinney  v.  Ileatley,  13  Or. 
35. 

In  such  suit  assignees  cannot  recover  attorney's  feev^vhen 
they  have  sufficient  property  in  their  hands  to  pay  the 
creditors,  beyond  the  statutory  costs:  Id. 

Where  a  plaintiff  in  a  divol-ce  case  failed  to  prove  her 
case,  she  was  nevertheless  awarded  costs,  the  defendant 
not  being  without  fault,  and  having  property  partly 
earned  by  the  plaintiff:  Bender  v.  Bender,  14  Or.  353. 

In  an  action  against  two  or  more  defendants  who  do  not 


156  Costs  AND  Disbuesements. 

Costs  and  Disbursements  (continued). 

sever  their  defense,  but  one  bill  of  costs  can  be  allowed 
under  section  541  of  the  Civil  Code  (sec.  551,  Hill's 
A.  L.):  Tyler  v.  T.  of  T.  A.  &  P.  U.,  14  Or.  485. 

Orjiission  to  decree  costs  in  admiralty  does  not  prevent 
the  decree  from  being  final:  Sloop  Leonede  v.  United 
States,  1  W.  T.  153. 

Such  omission  is  presumptive  that  the  court  did  not  in- 
tend to  decree  costs,  the  allowance  of  costs  being  largely 
within  the  discretion  of  a  court  of  admiralty:  Id. 

Where  liusband  who  began  suit  against  his  wife  for  di- 
vorce was  ordered  by  the  court  to  pay  in  a  sura  of 
money  to  enable  wife  to  defend,  and  subsequently  be 
dismissed  the  suit,  judgment  for  costs  and  expenses  of 
■wife,  including  counsel  fees,  is  properly  rendered  against 
him:  Thorndike  v.  Thorndike,  1  W.  T.  175. 

Such  expenses  are  contemplated  by  the  divorce  act,  and 
may  be  allowed  by  the  court  in  any  disposition  it  may 
make  of  the  case:  Id. 

Dismissal  of  the  action  having  obviated  trial,  the  Supreme 
Court  reduces  the  amount  of  counsel  fees  allowed,  but 
the  other  costs,  being  peculiarly  within  the  knowledge  of 
the  lower  court,  are  allowed  to  stand:  Id. 

An  encumbrance  of  the  record  on  error  with  superfluous 
matter  should  be  punished  by  the  imposition  of  costs: 
King  County  v.  Collins  and  Condon,  1  W.  T.  4G9. 

Where  judgment  is  affirmed  as  to  one  of  the  appellees, 
such  appellee  is  entitled  to  costs  to  the  extent  of  the 
statutory  attorney's  fee  and  disbursements  for  brief 
against  the  appellant,  but  not  against  his  sureties:  Wil- 
ley  V.  Morrow,  1  W.  T.  475. 

Where  a  suit  is  brought  in  the  District  Court  that  might 
have  been  brought  before  a  justice  of  the  peace,  costs 
arc  not  recoverable,  unless  judgment  be  for  over  one  hun- 
dred dollars:  Bagley  v.  Carpenter,  2  W.  T.  19,  over- 
ruling p;:bey  V.  Engle  and  Hill,  1  W.  T.  72. 

And  in  such  case  the  test  of  jurisdiction  is  not  the  sum 
recovered,  but  the  sum  claimed:  Id. 

Allowance  of  attorneys'  fees  in  a  suit  to  foreclose  a  me- 
chanic's lien:  Seattle  &  W.  W.  R.  R.  Co.  v.  Ah  Kow, 
2  W.  T.  36. 


Costs  and  Disbursements.  157 

Costs  and  Disbursements  (continued). 

2.  Taxation  of  Costs. 

Mileage  will  not  be  allowed  for  witnesses  beyond  the  state 
line:  Crawford  v.  Abraham,  2  Or.  1G3. 

Mileage  and  attendance  must  be  actual,  but  may  be  taxed, 
although  witness  attends  without  subpoena:  Id. 

Must  be  for  miles  actually  traveled,  and  days  of  attend- 
ance as  witnesses  only:  Id. 

Allowed  to  witness  within  the  state  beyond  reach  of  sub- 
poena: Id. 

But  one  claim  for  mileage  and  attendance  of  same  witness 
at  same  term,  in  two  or  more  cases  between  the  same 
parties  can  be  made:   Id. 

Cost  bill  must  be  verified  as  a  pleading,  and,  on  objection 
made,  amended  bill  must  be  filed:  Id. 

Each  item  in  cost-bill  must  be  separately  stated:  Wilson 
V.  Salem,  3  Or.  483;  Cross  v.  Chichester,  4  Or.  114. 

Practice  on  filing  of  objections  to  cost-bill;  what  amended 
verified  statement  must  contain:  Id. 

What  suflicient  verification  of  cost-bill:  Cross  v.  Chiches- 
ter, 4  Or.  114. 

Additional  cost-bill  cannot  be  filed  after  satisfaction  of 
judgment,  and  execution  issued  for  additional  costs: 
Snipes  v.  Beezley,  5  Or.  420. 

Amount  of  costs  need  not  be  stated  in  the  judgment,  and 
may  be  taxed  by  the  clerk  from  the  records  and  papers 
on  file:  Huntington  v.  Blakeney,  1  W,  T.  111. 

3,  Bights  and  Remedies. 

Decision  of  Circuit  Court  determining  the  amount  of  costs 
may  be  reviewed:  Cross  v.  Chichester,  4  Or.  114. 

Right  of  action  on  undertaking  for  costs  does  not  pass  to 

■  assignee  of  justice's  judgment  by  virtue  of  the  assign- 
ment of  the  judgment:  Dray  v.  Mayer,  5  Or.  185. 

Judgment  for  costs  and  disbursements  is  left  in  full  force 
in  a  criminal  case,  on  abatement  of  appeal  by  thc_death 
of  defendant  and  the  lien  of  the  state  on  the  defendant's 
lands  continues:  Whitley  v.  Murphy,  5  Or.  328. 

Judgment  for,  in  criminal  case,  may  be  enforced  as  in  a 
civil  action:  Id. 

Relief  granted  against  fraudulent  taxation  of  costs  in 
criminal  case  may  be  granted  upon  a  proper  showing: 
Id. 


158  Costs  and  Disbursements. 

Costs  and  Disbursements  (continued). 

Assignment  of  costs  to  attorney  after  verdict  and  before 
judgment  is  valid  and  will  prevent  right  of  set-off  against 
the  judgment  which  would  otherwise  exist:  Ladd  and 
Bush  V.  Ferguson  and  McFadden,  9  Or.  180. 

Appeal  from  judgment  awarding  costs,  or  from  order  fix- 
ing the  amount  of  costs  recoverable,  when  each  is  proper: 
Burt  V.  Ambrose,  11  Or.  26. 

Injunction  does  not  lie  to  prevent  issuing  an  execution  to 
enforce  an  erroneous  judgment  for  costs;  appeal  is  the 
proper  remedy;  Nicklin  v.  Hobin,  13  Or.  408. 

Where  costs  have  been  improperly  taxed,  the  remedy  is 
by   retaxation   in    the    District    Court:    Newberg    and 
Abrams  v.  Farmer,  1  W.  T.  182. 
Co-tenancy.     See  Tenancy  in  Common. 
Counsel.     See  Attorneys. 

Counterclaims.     See  Set-off  and  Counterclaims. 
Counterfeiting. 

Punishment  rests  exclusively  with  courts  of  United  States: 
State  V.  Brown,  2  Or.  221. 

But  state  legislatures  may  make  it  an  offense  punishable 
by  state  courts  to  have  implements  for  counterfeiting  in 
possession,  and  such  offense  is  not  counterfeiting:  Id. 
Counties.     See  Paupers;  Taxation. 

Liability  for  injury  occasioned  by  defective  bridge:  Mc- 
Calla  V.  Multnomah  Co.,  3  Or.  424. 

Road  supervisor  is  agent  of;  liability  for  his  negligence: 
Id. 

Cannot  pre-empt  land  for  seat  of  justice  under  act  of  Con- 
gress of  May  26,  1824:  Whitlow  v.  Reese,  4  Or.  335. 

Can  recover  money  illegally  claimed  by  and  paid  to  offi- 
cer for  his  services:  Grant  Co.  v.  Sels,  5  Or.  243. 

When  suit  brought  in  the  wrong  county,  the  objection  is 
avoided  by  changing  the  venue  by  order  of  court  before 
time  to  answer:  Weiss  v.  Bethel,  8  Or.  522. 

Counties  are  bodies  politic;  may  sue  and  be  sued:  Crossen 
V.  Wasco  Co.,  10  Or.  111. 

Can  accept  service  and  waive  copy  of  notice  of  appeal 
through  county  clerk:  Read  v.  Benton  Co.,  10  Or.  154. 

When  action  lies  against  county  for  payment  of  claims: 
Cook  V.  Multnomah  Co.,  8  Or.  170;  Mountain  v.  Mult' 
nomah  Co.,  8  Or.  470;  Crossen  v.  Wasco  Co.,  10  Or. 


County  Clerk.  159 

Counties  (continued). 

Ill;  Pruden  v.  Grant  Co.,  12  Or.  308;  Wood  v.  Riddle, 
14  Or.  254;  Vincent  v.  Umatilla  Co.,  14  Or.  375. 

County  must  be  made  party  on  review  of  acts  of  county 
court  in  transaction  of  county  business:  Wood  v.  Rid- 
dle, 14  Or.  254. 

Legislature  has  full  power  to  apportion  counties,  and  ad- 
just their  common  burdens:  ^lorrow  Co.  v.  Ilendryx,  14 
Or.  397. 

The  act  for  the  organization  of  Morrow  County  construed: 
Id. 

When  a  new  county  is  created  out  of  an  old  one,  the  lat- 
ter takes  the  county  property,  and  becomes  liable  for 
all  the  county  debts,  in  the  absence  of  express  legisla- 
tion: Gilliam  Co.  v.  Wasco  Co.,  14  Or.  525. 

In  such  case  the  old  county  may  be  compelled  to  pay  the 
whole  of  the  state  levy  of  taxes  charged  upon  the  county 
at  the  time  of  separation:  Id. 

Requisites  of  a  complaint  to  Charge  a  county  for  mainte- 
nance of  a  pauper:  Collins  v.  King  Co.,  1  W.  T.  416. 

Account  in  such  case  must  have  been  presented  to  and 
disallowed  by  board  of  commissioners  before  action 
lies:  Id. 

County  is  not  a  proper  party  to  proceedings  instituted  to 
compel  the  individual  members  of  board  of  commission- 
ers to  perform  duties  devolving  on  them  by  law,  not  as 
a  board,  but  as  members  thereof:  Kitsap  County  v. 
Carson,  1  W.  T.  419. 

In  such  proceedings,  county  cannot  sue  out  a  writ  of  error: 

Id- 
Liability  of  a  county  for  care  of  paupers:  King  County  v. 
Collins  and  Condon,  1  W.  T.  469. 
County  Clerk.     See  Appeal  and  Error;  Bonds  and  Under- 
takings;   Costs  and    Disbursements;    Elections;    Fees; 
OfiQcers.  ^_ 

Duties  are  not  only  ministerial,  but  quasi  judicial:  State 

V.  Smith,  1  Or.  250. 
Appointment  of  deputy  with  powers  to  act  for  him  must 

be  authorized  by  law:  Id. 
Has  power  to  enter  defaults  without  judicial  direction, 
under  the  Code:  Gray  don  v.  Thomas,  3  Or.  250;  Craw- 
ford V.  Beard,  12  Or.  447. 


160  County  Clerk. 

County  Clerk  (continued) 

In  so  doing  he  exercises  ministerial,  not  judicial,  functions: 
Id. 

Deputy  county  clerk  under  territorial  act  of  1856  was  an 
independent  officer:  Willamette  Co.  v.  Gordon,  6  Or. 
175. 

His  official  signature  was  "deputy  clerk,"  and  his  duties 
were  distinct  from  those  of  the  clerk:  Id. 

Bond  being  lost,  equity  will  administer  complete  relief 
against  sureties  in  favor  of  one  damaged  by  clerk's 
acts:  Howe  v.  Taylor,  6  Or.  284;  S.  C,  9  Or.  288. 

Parol  proof  of  contents  and  the  names  of  the  sureties  on 
such  bond  is  admissible  when  the  original  is  lost  and 
the  record  copy  destroyed:  Howe  v.  Taylor,  9  Or.  288. 

Liability  of  the  clerk  and  his  sureties  for  failure  to  record 
a  mortgage:  Id. 

Kot  entitled  to  commission  on  mone}^  bid  at  execution 
sale,  not  actually  coming  into  his  hands:  Jackson  v. 
SigHn,  10  Or.  93.       • 

Can  accept  service  and  waive  copy  of  notice  of  appeal  for 
the  county  as  respondent:  Read  v.  Benton  County,  10 
Or.  153. 

Duty  to  make  out  and  deliver  to  sheriff  notices  of  elec- 
tion may  be  enforced  by  mandanms:  State  v.  Ware,  13 
Or.  380. 
County  Commissioners.  See  Appeal  and  Error;  Bridges; 
County  Court;  Ferries;  Highways;  Judgments  and 
Decrees;  Mandamus;  Parties;  Pauj^ers. 
County  Court.  See  Administration;  Administrators  and 
Executors;  Bridges;  Counties;  Courts;  Ferries;  High- 
ways; Judgments  and  Decrees;  Jurisdiction. 

Cannot  establish  ferry  for  one  year;  such  order  is  void: 
Cason  v.  Stone,  1  Or.  39. 

Can  only  establish  perpetual  ferries,  and  grant  perpetual 
licenses:  Id. 

County  court  sitting  as  county  commissioners  is  a  tri- 
bunal of  limited  and  inferior  jurisdiction:  Ruckles  v. 
State,  1  Or.  347;  Wren  v.  Fargo,  2  Or.  19. 

Has  no  authority  to  require  sheriff  to  give  new  bond  on 
pain  of  vacating  his  office:  Id. 

Nor  after  approving  sheriff's  bond,  of  its  own  motion  dis- 
approve the  same:  Wren  v.  Fargo,  2  Or.  19. 


County  Court.  161 

County  Court  (continued). 

Certificate  of,  on  appeal,  in  case  wherein   title   to  real 

property  came  in  issue,  is  sufficient  compliance  with 

statutory  requirement  to  certify  such   case  to  Circuit 

Court,  and  judgment  is  not  void: Gird  v.  Morehouse,  2 

Or.  53. 
Authority  of,  over  assessment  roll:  Oregon  Stean;  Nav. 

Co.  V.  Wasco  Co.,  2  Or.  206;  Rhea  v.  Umatilla  Co.,  2' 

Or.  298;  Darragh  v.  Bird,  3  Or.  246. 
No  authority  to  determine  what  persons  are  entitled  to- 

the   realty,   and   to  partition   the  estate  of   decedent: 

Ilanner  v.  Silver,  2  Or.  336. 
In  prohate  matters,  is  a  court  of  superior  jurisdiction: 

Russell  v.  Lewis,  3  Or.  380;  Tustin  v.  Gaunt, 4  Or.  305;. 

Monastes  v.  Catlin,  6  Or.  119. 
Jurisdiction  and  powers  under  act  of  1868  (c.  39,  tit.  1, 

Hill's  A.  L.)  in  regard  to  ditches:  Seely  v.  Sebastian,, 

4  Or.  25. 

Is  a  court  of  record;  limited  jurisdiction  in  laying  out 
roads:  Johns  v.  Marion  County,  4  Or.  46;  State  v. 
Officer,  4  Or.  180;  C.  &  G.  Road  Co.  v.  Douglas  County,. 

5  Or.  280. 

Record  must  show  affirmatively  that  it  has  acquired  juris- 
diction to  lay  out  the  road:  State  v.  Officer,  4  Or.  180; 
Tompkins  v.  Clackamas  County,  11  Or.  364. 

Record  in  probate  matters  is  entitled  to  presumptions  of 
regularity,  and  cannot  be  impeached  collaterally:  Tus- 
tin V.  Gaunt,  4  Or.  305. 

Has  no  jurisdiction  to  try  questions  of  title  or  eminent 
domain:  C.  &  G.  Road  Co.  v.  Douglas  County,  5  Or.  280> 

Review  lies  to  Circuit  Court  upon  its  proceedings  in  lay- 
ing out  a  road:  Id. 

Speaks  only  by  its  journal,  and  a  contract  with  county- 
can  only  be  proved  thereby:  Douglas  County  Road  Co. 
V.  Abraham,  5  Or.  318.  '^ 

Supervisory  control  of  Circuit  Court  over,  to  require  com- 
pletion of  the  record,  is  exercised  by  mandamus,  ap- 
peal, or  review,  not  injunction:  Road  Co.  v.  Douglas 
County,  5  Or.  373. 

In  appointing  guardian  for  minors  and  lunatics,  is  a 
court  of  superior  jurisdiction:  Monastes  v.  Catlin,  d 
Or.  119. 

Or.  Dig.— U 


162  County  Court. 

County  Court  (continued). 

Such  jurisdiction  pertains  to  probate  court  within  article 
7,  section  12,  of  the  constitution:  Id. 

Has  exclusive  jurisdiction  in  probate  of  wills:  Willa- 
mette County  V.  Gordon,  6  Or.  175;  Hubbard  v.  Hub- 
bard, 7  Or.  42;  Brown  v.  Brown,  7  Or.  285. 

Is  not  liable  for  .compensation  of  a  jailer  appointed  by  the 
sheriff:  Crossen  v.  Wasco  County,  6  Or.  215. 

Order  denying  petition  for  road  no  bar  to  subsequently 
laying  out  road  over  same  route:  Scheland  v.  Erpel- 
ding,  6  Or.  238. 

May  appoint  special  terms  at  which  any  business  may  be 
transacted:  Id. 

Has  power  to  employ  attorneys  to  represent  the  county  in 
proceedings  by  or  against  it:  Van  Sant  v.  Portland,  6 
Or.  394. 

Order  of  distribution  of  personalty  of  deceased  persons  is 
final  unless  appealed  from:  Winkle  v.  Winkle,  8  Or. 
193. 

Has  exclusive  jurisdiction  in  matters  pertaining  to  trans- 
fer of  the  title  to  personalty  of  deceased  persons:  Id. 

Has  power  to  make  agreement  with  private  corporation 
for  appropriation  of  a  county  road:  D.  C.  R.  Co.  v.  C, 
&  G.  R.  Co.,  8  Or.  102. 

Has  power  to  assess  damages  for  taking  material  by  road 
supervisor  from  adjoining  land  to  repair  roads:  Ken- 
dall V.  Post,  8  Or.  141. 

Allowing  fees  to  coroner,  for  summoning  jury,  discretion- 
ary: Cook  V.  Multnomah  County,  8  Or.  170. 

Duty  of  the  County  Court  to  provide  armory  for  militia 
company:  Mountain  v.  Multnomah  County,  8  Or.  470; 
Vincent  v.  Umatilla  County,  14  Or.  375. 

Decision  in  allowance  of  claims,  where  the  statute  pre- 
scribed the  duty,  and  a  judicial  function  is  exercised, 
is  subject  to  writ  of  review:  Id, 

Has  jurisdiction  in  proceeding  to  contest  a  will,  and  to 
revoke  letters  testamentary:  Heirs  of  Clark  v.  Ellis,  9 
Or.  128. 

Auditing  and  allowing  claim  of  fees  of  officers  fixed  by 
law  is  not  a  judicial  decision  subject  to  review:  Crossen 
V.  Wasco  County,  10  Or.  111. 

Such  duties  are  distinguished  from  duty  of  auditing  and 


County  Judge.  163 

County  Court  (continued). 

allowing  claims  under  a  statute  investing  the  court  with 
special  or  discretionary  powers  therefor:  Id. 

Judicial  functions  in  transacting  business  as  financial 
agent  of  the  county,  and  in  auditing  and  allowing  fees 
of  officers,  are  not  essential  for  that  purpose,  and  can- 
not be  implied:  Id. 

Court  has  no  power  to  permit  corporation  to  establish  toll- 
gate  on  highway  at  a  point  not  on  its  corporate  road: 
State  V.  Douglas  County  Road  Co.,  10  Or.  185. 

In  exercising  probate  powers  to  sell  real  property  of  the 
estate  of  a  deceased  person,  its  jurisdiction  depends 
upon  the  sufliciency  of  the  petition:  Wright  and  Jones 
V.  Edwards,  10  Or.  298. 

No  jurisdiction  to  sell  is  acquired  where  the  petition  is 
not  strictly  in  accordance  with  the  statute:  Id. 

Jurisdiction  to  settle  accounts  of  administrator,  and  deter- 
mine the  amount  of  his  liability  to  the  estate,  is  exclu- 
sive: Hamlin  v.  Kinney,  2  Or.  91;  Adams  v.  Petrain, 

11  Or.  304. 

Statute  requiring  certain  proceedings  at  "next  ensuing" 
term  refers  to  regular  term,  not  special:  Tompkins  v. 
Clackamas  County,  11  Or.  364. 

Term  appointed  by  county  judge,  record  not  showing  com- 
missioners present  and  concurring,  is  irregular,  and  an 
order  establishing  road  then  made  is  void:  Id. 

Court  cannot  by  nunc  pro  tunc  order  validate  void  order, 
against  the  rights  of  parties  who  have  not  had  a  hear- 
ing: Id. 

Jurisdiction  in  granting  and  revoking  letters  of  adminis- 
tration is  exclusive  in  the  first  instance:  Ramp  v.  Mc- 
Daniel,  12  Or.  108. 

Powers  in  probate  matters  are  not  created  by  statute:  Id. 

In  auditing  bills,  where  statute  docs  not  fix  the  amount 
to  be  allowed,  the  court  acts  judicially,  and  its  judg- 
ment cannot  be  reviewed  except  for  error  of  want  of 
jurisdiction:  Cook  v.  Multnomah  Count)%  8  Or.  170; 
Mountain  v.  Multnomah  County,  8  Or.  470;  Crossen  v. 
Wasco  County,  10  Or.  Ill;  Pruden  v.  Grant  County, 

12  Or.  308;  Vincent  v.  Umatilla  County,  14  Or.  375. 
County  Judge.     See  County  Court;  Judges. 

Elected  holds  for  four  years,  except  in  case  of  death  or 
resignation:  State  v.  Johns,  3  Or.  533. 


164  County  Judge. 

County.  Judge  (continued). 

Power  to  repair  bridges  in  cases  of  emergency:  Springfield 
Milling  Co.  v.  Lane  County,  5  Or.  265. 

Money  illegally  received  by,  under  claim  for  salary,  may 
be  recovered  by  county:  Grant  County  v.  Sels,  5  Or. 
243. 
County  Seat. 

Act  of  1868,  changing  county  seat  of  Umatilla  County,  is 
constitutional:  Simpson  v.  Bailey,  3  Or.  515. 

Act  of  1872,  changing  county  seat  of  Union  County,  is 
constitutional:  McWhirter  v.  Brainard,  5  Or.  426. 

Submitting  to  vote  the  place  of  change  is  not  unconstitu- 
tional as  delegating  legislative  power:  Id. 

Mandamus  the  remedy  for  contesting  such  vote,  not  injunc- 
tion: Id. 
County  Treasurer. 

Not  liable  for  money,  in  action  for  money  had  and  re- 
ceived, paid  to  county  and  mingled  with  county  funds: 
Trainer  v.  Multnomah  County,  2  Or.  214. 

Re-enacting  the  law  fixing  his  salary  does  not  deprive  him 
of  the  right  to  a  percentage  for  receiving  school  funds, 
allowed  to  him  by  another  statute  not  referred  to  in  the 
re-enactment:  Chatfield  v.  Washington  County,  3  Or. 
318. 
Courses  and  Distances.  See  Boundaries. 
Courts.  Sec  Circuit  Courts;  County  Court;  Judges;  Judg- 
ments and  Decrees;  Jurisdiction;  Rules  of  Court;  Terms 
of  Court. 

Every  court  has  power  to  control  its  own  process  and  pre- 
vent its  abuse:  Provost  v.  Millard,  3  Or.  370. 

May  make  reasonable  rules  for  the  conduct  of  business 
before  them:  Carney  v.  Barrett,  4  Or.  171. 

Nunc  pro  tunc  order,  when  refusal  discretionary,  and  when 
not:  Road  Co.  v.  Douglas  County,  5  Or.  406. 

Territorial  Probate  Court  was  a  court  of  inferior  and  lim- 
ited jurisdiction:  Farley  v.  Parker,  6  Or.  105. 

Every  court  has  power  to  amend  its  record  to  make  it 
show  the  actual  facts  determined,  and  such  amend- 
ment is  not  open  to  collateral  attack:  Harvey's  Heirs 
V.  Wait,  10  Or.  117. 

But  having  lost  power  to  change  previous  decision,  its 
alterations  at  a  subsequent  term  are  void:  Id. 


Courts.  165 

Courts  (continued). 

Constitutionality  of  act  of  1878  (sec.  2287,  Hill's  A.  L.), 
providing  for  the  election  of  the  judges  of  the  Supreme 
and  Circuit  Courts  in  district  classes,  decided:  Cline 
and  Newsome  v.  Greenwood  and  Smith,  10  Or.  230. 

Every  court  has  power  to  vacate  its  decrees  made  without 
jurisdiction,  whether  at  same  or  subsequent  term:  Ladd 
and  Tilton  v.  Mason,  10  Or.  308. 

At  any  time  when  the  rights  of  thind  parties  have  not 
intervened,  a  court  may  amend  its  records  by  nunc  pro 
tunc  order  to  make  it  conform  to  the  truth:  Carter, 
Rice,  &  Co.  V.  Koshland,  12  Or.  492. 

Under  section  911  of  the  Code  (sec.  940,  Hill's  A.  L.), 
courts  have  power  to  adopt  any  suitable  procedure, 
when  there  is  none  pointed  out  by  statute,  conformable 
to  the  Code:  Aiken  v.  Aiken,  12  Or.  203;  Carter,  Rice, 
&  Co.  V.  Koshland,  13  Or.  G15. 

Act  of  Congress  of  1856,  limiting  times  and  places  of 
holding  courts,  does  not  affect  jurisdiction,  but  desig- 
nates time  and  place  of  its  exercise:  Leschi  v.  Terri- 
tory, 1  W.  T.  13. 

Until  designation  of  the  times  and  places  of  holding  the 
courts  is  made  by  the  judges  under  that  act,  the  laws 
of  the  territory  on  the  subject  control:  Id. 

Organization  and  jurisdiction  of  the  courts  of  Washington 
Territory  considered:  Id. 

Queere,  whether  amendment  6  to  the  United  States  con- 
stitution applies  to  territorial  courts:  Id. 

Act  of  Congress,  August  IG,  185G,  regulating  courts  of 
Washington  Territory,  and  requiring  judges  of  Supreme 
Court  to  assign  places  for  holding,  took  effect  when  the 
order  was  made,  pursuant  to  the  act:  Bover  v.  Fowler, 
1  W.  T.  101. 

Court  is  always  deemed  open  for  purposes  connected  with 
a  cause  submitted  to  the  jury:  Edwards  v.  Te«^itory, 
1  W.  T.  195. 

In  a  qualified  sense,  territorial  courts  are  United  States 
courts;  they  exercise  the  combined  jurisdiction  of  Cir- 
cuit and  District  Courts  of  the  United  States:  Smith  v. 
United  States,  1  W.  T.  2G2. 

Territorial  courts  arc  not  part  of  the  federal  judiciary: 
Mckels  v.  Griffin,  1  \V.  T.  374. 


166  Courts. 

Courts  (continued). 

Judiciary  act  of  1789,  and  other  acts  conferring  jurisdic- 
tion upon  the  United  States  courts,  are  not  applicable 
to  territorial  courts:  Id. 
A  District  Court  of  the  territory  cannot  properly  be  en- 
titled a  District  Court  of  the  United  States:  Id. 
Courts  are  open  at  all  times  in  the  district  for  defaults, 
and  judge  in  chambers  in  any  part  of  the  district  can 
render  such  judgment  in  cases  wherever  pending  in  the 
district:  Murne  v.  Schwabacher  Bros.  &  Co.,  2  W.  T. 
130. 
It  is  against  public  policy  for  persons  to  agree  or  under- 
take to  occupy  the  attention  of  courts  with  pretended 
litigation  in  which  there  is  no  question  to  be  judicially 
determined:  Connoly  v.  Cunningham,  2  W.  T.  242. 
Covenants.     See  Contracts;  Deeds. 
Coverture.     See  Husband  and  Wife. 

Creditor's  Suits.     See  Executions  and  Proceedings  Supple- 
mental; Fraudulent  Conveyances;  Judgments. 
Criminal  Conversation. 

Evidence  of  the  marriage  may  be  given  by  the  testimony 
of  eye-witnesses  or  the  parties:  Jacobsonv.  Siddal,  12 
Or.  280. 
The  gist  of  the  action  is  not  alone  the  loss  of  service,  but 

also  loss  of  society  and  comfort  of  wife:  Id. 
Plaintiff  may  show  the  terms  upon  which  he  and  his  wife 
lived,  and  the  effect  of  the  injury  upon  their  married 
life:  Id. 
Criminal  Law.  See  Assault;  Assault  and  Battery;  Bonds; 
Codes;  Fines  and  Forfeitures;  Gaming;  Game  Laws; 
Homicide;  Insanity;  Jurisdiction;  Jury  and  Jury 
Trial;  Justice  of  the  Peace;  Kidnaping;  Larceny; 
Liquor  Laws;  New  Trial;  Nuisance;  Rape;  Statutes. 

1.  In  Ge.neral. 

2.  Jurisdiction. 

3.  Indictment  and  Complaint. 

4.  Evidence. 

5.  Defenses. 

6.  Instructions.  > 

7.  Practice  and  Incidents  of  Trial.. 

8.  Appeals. 


Criminal  Law.  167 

Criminal  La"W  (continued). 
1.  In  General. 

Same  act  may  be  punishable  under  territorial  law,  and 
act  of  Congress:  Territory  v.  Coleman,  1  Or.  191. 

A  pack  of  playing  cards  is  a  "  gambling  device,"  within 
the  meaning  of  the  statute:  Frisbie  v.  State,  1  Or.  264. 

An  offense  not  declared  by  statute  to  be  a  felony,  or  pun- 
ishable by  imprisonment  in  the  penitentiary,  is  a  mis- 
demeanor, punishable  by  imprisonmnent  in  the  county 
jail:  Horner  v.  State,  1  Or.  267. 

Criminal  statutes  are  to  be  strictly  construed  in  favor  of 
the  accused:  Id. 

Must  be  construed  in  accordance  with  their  natural  and 
grammatical  meaning:  Remmington  v.  State,  1  Or.  281. 

Betting  on  a  game  of  cards  is  not  an  offense  under  statute 
of  1858:  Id. 

Keeping  open  house,  in  which  intoxicating  liquor  is  kept 
for  retail  on  Sunday,  is  indictable;  former  statute 
making  it  a  misdemeanor  is  repealed  by  implication: 
Palmer  v.  State,  2  Or.  66. 

Offense  of  larceny,  committed  without  the  state,  continues 
and  accompanies  the  stolen  property  carried  into  the 
state:  State  v.  Johnson,  2  Or.  115. 

The  offense  may  be  tried  in  any  county  of  the  state  into 
which  the  stolen  property  may  be  brought  by  the 
offender:  Id. 

Embezzlement  is  the  proper  name  for  that  crime  where 
an  agent  fraudulently  converts  the  money  of  his  em- 
ployer: State  V.  Sweet,  2  Or.  127. 

The  offense  of  having  counterfeiting  tools  in  possession 
with  intent  to  use  the  same  for  counterfeiting  is  not 
included  in  the  crime  of  counterfeiting,  and  may  by  act 
of  legislature  be  made  punishable  by  state  courts: 
State  V.  Brown,  2  Or.  221. 

Game  of  cards  called  "  poker  "  is  not  a  "gambling device  " 
within  the  statute:  State  v.  Mann,  2  Or.  238. 

Said  statute  is  void  for  uncertainty,  since  it  does  not 
enumerate  the  gambling  devices  prohibited:  Id. 

Defendant  accused  of  stealing  from  the  person  may  be 
convicted  of  larceny,  or  larceny  from  the  person,  if  the 
facts  charged  in  the  indictment  are  sufficient  to  include 
both:  State  v.  Taylor,  3  Or.  10. 


168  Criminal  Law. 

Criminal  Law  (continued). 

Assault  with  dangerous  weapon  is  felony,  and  private 
person  may  arrest  offender:  Lander  v.  Miles,  3  Or.  35. 

Under  statute  forbidding  selling  liquor  without  license,  if 
the  liquor  be  sold  it  is  not  material  whether  it  be  paid 
for:  State  v.  Cutting,  3  Or.  260. 

Not  violation  of  such  statute  to  give  away  liquor  without 
expectation  of  pay:  Id. 

Subterfuge  or  understanding  that  the  person  obtaining 
the  liquor  will  pay  for  it,  or  purchase  something  else 
because  of  it,  is  unavailing:  Id. 

Lottery  is  a  game  of  hazard,  in  which  small  sums  are 
ventured  for  the  chance  of  obtaining  greater:  Fleming 
V.  Bills,  3  Or.  286. 

Payment  of  prizes  in  money  is  not  essential  to  lottery: 
Id. 

Same  act  may  be  punishable  under  city  ordinance  and 
state  statute:  State  v.  Sly,  4  Or.  277;  State  v.  Bergman, 
6  Or.  341;  Wong  v.  Astoria,  13  Or.  538. 

Any  offense  made  punishable  by  section  527  of  the  Crim- 
inal Code  (sec.  1735,  Hill's  A.  L.)  may  be  denominated 
mayhem:  State  v.  Vowels,  4  Or.  324. 

Not  necessary  to  the  validity  of  a  statute  against  gam- 
bling, that  it  shall  describe  the  manner  in  which  the 
prohibited  game  is  played:  State  v.  Carr,  6  Or.  133; 
State  V.  Gitt  Lee,  6  Or.  425. 

It  is  sufficient  if  the  game  be  described  by  name  in  the 
statute:  Id. 

Proceeding  by  indictment  is  an  action  at  law,  within  the 
meaning  of  the  statute  of  1876  against  gambling  (c.  45, 
Hill's  A.  L.),  to  recover  fines  and  forfeitures  under  that 
act:  State  v.  Carr,  6  Or.  133. 

There  can  be  no  legal  compromise  of  a  criminal  charge 
where  offender  haa  not  been  arrested,  nor  in  any  way 
held  to  answer  the  charge:  Saxon  v.  Hill,  6  Or.  388. 

In  comprising  larceny  under  the  statute,  nothing  more 
than  the  stolen  property,  or  its  value,  and  the  neces- 
sary expense  of  reclaiming  it,  can  be  exacted:  Id. 

The  satisfaction  must  be  unequivocally  acknowledged, 
not  a  simple  agreement  to  acknowledge  satisfaction: 
Id. 

Homicide  in  perpetration  of  rape,  arson,  robbery,  or  bur- 


Criminal  Law.  169 

Criminal  Law  (continued). 

glary  is  murder  in  the  first  degree:  State  v.  Brown,  7 
Or.  18G. 

Removal  of  the  goods  being^continuous  and  uninterrupted 
from  time  of  the  robbery  until  the  time  of  killing  while 
endeavoring  to  escape,  the  killing  is  done  during  the 
robbery:  Id. 

Acts  of  each  person  concerned  in  a  joint  criminal  enter- 
prise involve  all:  State  v.  Johnson,  7  Or.  210. 

Where  one  intending  to  kill  another  misses  him  and  kills 
a  third  person,  he  is  equally  guilty  as  though  he  had 
killed  the  person  at  whom  he  shot:  Id. 

Omission  to  make  any  question  as  to  the  degree  is  not 
admission  of  the  degree  charged:  State  v.  Whitney,  7 
Or.  386. 

Money  collected  by  a  sheriff  for  taxes  is  the  money  of  the 
county  in  his  hands,  and  he  may  be  guilty  of  larceny 
by  converting  the  same  to  his  own  use:  State  v.  Dale, 
8  Or.  229. 

Larceny  of  horse,  saddle,  and  bridle,  taken  at  same  time 
and  place,  the  property  of  the  same  person,  is  but  one 
offense:  State  v.  McCormack,  8  Or.  236. 

Prosecution  cannot  split  up  such  offense,  and  cause  two 
indictments  against  the  person  so  taking  the  articles: 
Id. 

Person  knowingly  receiving  an  over-payment  of  money, 
paid  him  by  mistake,  and  concealing  such  payment, 
converts  the  money  to  his  own  use,  is  guilty  of  larceny: 
State  V.  Ducker,  8  Or.  394. 

A  house  kept  for  public  dancing  simply  is  not  a  "hurdy- 
gurdy  "  house  within  the  statute:  State  v.  Tilley,  9  Or. 
125. 

If  the  acts  charged  in  the  indictment  constitute  murder 
in  the  first  degree,  it  will  support  conviction  in  either 
degree:  State  v.  Wintzingerodc,  9  Or.  153.  — 

Power  in  a  city  charter  to  legislate  to  "  secure  ^the  peace 
of  the  city  "  does  not  warrant  the  passage  of  an  ordi- 
nance to  close  stores  on  Sunday:  Corvallis  v.  Carlile, 
10  Or.  139. 

Acquittal  of  assault  and  battery  is  no  bar  to  prosecution 
for  kidnaping:  State  v.  Stewart,  11  Or.  52;  S.  C,  11 
Or.  238. 


170  Criminal  Law. 

Criminal  Law  (continued). 

If  a  note  has  been  "  uttered  or  published  as  true  or  gen- 
uine" with  intent  to  defraud,  the  offense  under  section 
592,  Criminal  Code  (sec.  1808,  Hill's  A.  L._),  is  made 
out,  though  no  defrauding  was  actually  accomplished: 
State  V.  Lurch,  12  Or.  99. 

City  of  Portland  cannot  declare  violation  of  an  ordinance 
a  misdemeanor:  Portland  v.  Schmidt,  13  Or.  17. 

Penalty  for  violation  of  an  act  falls  with  its  repeal,  and 
cannot  be  applied  to  the  violation  of  subsequent  act 
without  express  language  or  necessary  implication: 
State  V.  Gaunt,  13  Or.  115. 

An  act  prohibited  by  law,  for  which  no  penalty  has  been 
provided,  cannot  be  punished  as  a  misdemeanor:  Id. 

No  common-law  offenses  in  Oregon;  ofi'ense  and  penalty 
must  be  defined  by  statute:  Id. 

Right  of  trial  by  jury  is  common-law  right,  and  a  prose- 
cution for  violation  of  a  city  ordinance  is  not  a  criminal 
prosecution  within  the  meaning  of  the  constitution: 
Wong  V.  Astoria,  13  Or.  538. 

No  deprivation  of  right  to  trial  by  jury,  that  such  trial 
cannot  be  had  in  an  inferior  court  or  until  appeal  is 
taken:  Id. 

City  of  Astoria  has  power  to  suppress  and  prohibit  bawdy- 
houses,  and  punish  for  violation  of  the  ordinance:  Id. 

Power  in  city  by  charter  to  prevent  and  restrain  riot,  noise, 
disturbance,  etc.,  in  the  streets,  does  not  authorize  pun- 
ishing for  assault  with  dangerous  weapon:  Walsh  v. 
Union,  13  Or.  589. 

Statute  giving  cumulative  damages  to  person  losing  money 
at  gaming  is  remedial,  and  not  criminal  or  penal  in  that 
respect,  tliough  other  sections  of  the  act  are  criminal: 
O'Keefe  v.  Weber,  14  Or.  55. 

An  action  under  such  statute  to  recover  damages  is  a  civil, 
and  not  a  criminal,  action:  Id, 

Act  of  1885  regarding  license  of  bar-rooms,  etc.,  is  uncon- 
stitutional and  void:  State  v.  Wright,  14  Or.  365. 

Pending  prosecutions  fall  with  the  repeal  of  criminal 
statute;   Leschi  v.  Territory,  1  W.   T.  13. 

Under  indictment  for  a  high-grade  crime,  verdict  may  be 
rendered  for  a  lower  grade  necessarily  contained  in  the 
ofTense  charged :  Clarke  v.  Territory,  1  W.  T.  G8. 


Criminal  Law.  171 

Criminal  Law  (continued). 

Homicide  on  an  Indian  reservation  is  within  the  federal 
jurisdiction,  and  the  rules  of  the  common  law  govern: 
Shapoonniash  v.  United  States,  1  W.  T.  188. 

Within  the  admiralty  jurisdiction  of  the  United  States,  the 
crime  is  the  same  whether  the  murder  of  a  citizen  or  a 
foreigner:  Smith  v.  United  States,  1  W.  T.  262. 

Statute  conferring  on  city  power  to  license  saloons,  etc., 
does  not  repeal  a  general  statute  forbidding  sale  of  liquor 
without  license  from  the  board  of  county  commissioners: 
Corbett  v.  Territory,  1  W.  T.  431. 

Statute  prescribing  qualifications  of  a  person  practicing 
medicine  is  not  an  ex  post  facto  law  or  in  violation  of 
fourteenth  amendment:  Fox  v.  Territory,  2  W.  T.  297. 

Sentence  cannot  be  increased  after  judguient  and  com- 
mitment: State  v.  Cannon,  11  Or.  ol3. 
2.   Jurisdiction. 

Territorial  courts  may  punish  offense  against  the  United 
States  of  selling  liquor  to  Indians,  since  the  territory  is 
a  part  of  the  Indian  country:  United  States  v.  Tom,  1 
Or.  26;  Fowler  v.  United  States,  1  W.  T.  3. 

One  who  sells  liquor  to  Indians  may  be  punished  under 
the  territorial  law  and  the  law  of  the  United  States: 
Territory  v.  Coleman,  1  Or.  191. 

OflFense  of  larceny  committed  without  the  state  continues 
and  accompanies  the  stolen  propert3%  and  may  be  pun- 
ished in  any  county  in  the  state  where  the  property 
is  brought  by  the  offender:  State  v.  Johnson,  2  Or. 
115. 

Justice  of  the  peace  has  no  authority  to  hear  and  deter- 
mine felony  cases,  but  only  to  act  as  examining  magis- 
trate: Williams  v.  Shelby,  2  Or.  144. 

Authority  for  punishing  counterfeiting  rests  exclusively 
with  the  United  States  courts:  State  v.  Brown,  2f  Or. 
221.  _ 

State  courts,  under  statute,  may  have  authority  to  punish 
for  having  counterfeiting  tools  in  possession  with  intent 
to  use  the  same:  Id. 

Jurisdiction  of  Police  Court  may  be  made  the  same  as 
that  of  justice  of  the  peace,  but  cannot  be  limited  to 
criminal  cases:  State  v.  Wiley,  4  Or.  184. 

While  acting  as  justice  of  the  peace,  police  judge  has 


172  Criminal  Law. 

Criminal  La"w  (continued). 

same  jurisdiction  as  a  justice:  Id.;  Portland  v.  Denny, 
5  Or.  160. 

Circuit  Court  has  jurisdiction  of  crime  of  assault  and  bat- 
tery: State  V.  Siy,  4  Or.  277. 

By  charter  of  city  of  Portland,  police  judge  has  jurisdic- 
tion of  all  crimes  defined  by  ordinance  of  said  city:  Port- 
land V.  Denny,  5  Or.  160. 

In  addition  to  such  jurisdiction,  he  has  jurisdiction  identi- 
cal with  justices  of  the  peace:  Id. 

A  city  ordinance  which  provides  for  punishing  an  act  al- 
ready a  crime  under  the  state  law  does  not  deprive  Cir- 
cuit Court  of  jurisdiction  under  the  state  law:  State  v. 
Bergman,  6  Or.  341. 

Under  city  charter  giving  power  to  prevent  and  restrain 
riot,  noise,  disturbance,  etc.,  in  the  streets,  city  cannot 
give  recorder's  court  jurisdiction  to  punish  assault  with 
dangerous  weapon:  Walsh  v.  Union,  13  Or.  589. 

Act  of  Congress,  August  16,  1856,  limiting  times  and 
places  of  holding  District  Courts,  not  an  act  affecting 
jurisdiction:  Leschi  v.  Territory,  1  W.  T.  13. 

The  act  simply  designates  the  times  and  places  for  the 
exercise  of  jurisdiction,  and  the  authority  over  crimes 
remains  the  same:  Id. 

Homicide  on  Indian  reservation  is  within  the  jurisdiction 
of  the  courts  of  the  United  States:  Shapoonmash  v. 
United  States,  1  W.  T.  188. 

Acts  of  Congress  of  1825,  1835,  1846,  and  1856  are  not  re- 
strictive of  the  act  of  1790,  but  rather  enlarge  the  juris- 
diction of  the  United  States  courts:  Smith  v.  United 
States,  1  W.  T.  262. 

Marine  torts  committed  on  tide-waters  within  the  boun- 
daries of  a  county  are  within  the  jurisdiction  of  the 
United  States  courts:  Id. 

It  seems  the  territorial  courts  would  also  have  jurisdic- 
tion of  such  offenses:  Id. 

Murder  committed  on  San  Juan  Island,  at  the  time  when 
that  island  was  jointly  occupied,  under  convention,  by 
the  United  States  and  Great  Britain,  pending  settle- 
ment of  boundary,  is  within  the  jurisdiction  of  the  ter- 
ritorial courts:  Watts  v.  United  States,  1  W.  T.  289; 
Watts- V.  Territory,  1  W.  T.  409. 


Criminal  Law.  173 

Criminal  Law  (continued). 
3.   Indictment  and  Complaint. 

Allegation  of  mortal  wounding  on  a  day  certain,  the  par- 
ticular day  of  the  death  not  being  alleged  in  the  in- 
dictment, is  sufficient,  if  the  indictment  is  found  and 
presented  within  a  year  from  time  of  giving  the  wound: 
Bowen  v.  State,  1  Or.  270. 

Requisites  of  indictment  in  liquor  license  case,  and  what 
is  surplusage  therein:  Burchard  v.  State,  2  Or.  78. 

Embezzlement  is  proper  term  in  indictment  for  fraudulent 
conversion  by  agent  of  employer's  money:  State  v. 
Sweet,  2  Or.  127. 

If  indictment  state  sufficient  facts  to  constitute  larceny 
from  the  person,  it  includes  simple  larceny:  State  v. 
Taylor,  3  Or.  10. 

Form  set  forth  in  appendix  to  Code  is  sufficient  for  an 
indictment,  and  appendix  is  a  part  of  the  Code:  State 
V.  Dodson,  4  Or.  64;  State  v.  Spencer,  6  Or.  152;  State 
V.  Brown,  7  Or.  186;  State  v.  Lee  Yan  Yan,  10  Or.  365. 

Essentials  of  indictment  under  section  636  of  Code,  for 
unlawful  charging  of  fees  by  public  officer:  State  v. 
Packard,  4  Or.  157;  State  v.  Perham,  4  Or.  188. 

Indictment  must  set  forth  the  acts  and  circumstances 
constituting  the  offense:  State  v.  Packard,  4  Or.  157; 
State  V.  Perham,  4  Or.  188;  State  v.  Dougherty,  4  Or. 
200. 

Essentials  of  an  indictment  for  setting  up  a  lottery:  State 
V.  Dougherty,  4  Or.  200. 

Complaint  before  magistrate  need  not  be  in  writing  on  a 
charge  of  felony:  Hannah  v.  Wells,  4  Or.  249. 

Any  offense  under  section  527  of  the  Criminal  Code  (sec. 
1735,  Hill's  A.  L.)  may  be  called  mayhem  in  indict- 
ments: State  V.  Vowels,  4  Or.  324. 

Indictment  for  illegal  voting  under  section  630  of  Crim- 
inal Code  (sec.  1846,  Hill's  A.  L.):  State  v.  Bruce,  5 
Or.  68. 

Where  the  acts  and  circumstances  are  omitted,  defect 
must  be  taken  advantage  of  by  demurrer,  or  islvaived: 

r    State  V.  Bruce,  5  Or.  68;  State  v.  Doty,  5  Or.  491. 

Indictment  for  assault  with  intent  to  kill  is  sufficient,  if 
not  demurred  to,  if  in  language  of  statute,  although  it 
does  not  state  the  acts  constituting  the  ofifense:  State 
V.  Doty,  5  Or.  491. 


174  Criminal  Law. 

Criminal  Law  (continued). 

What  objections  are  waived  by  failure  to  demur:  Id. 

Where  statute  states  the  offense  disjunctively,  indictment 
is  sufficient  if  it  embrace  the  whole  in  a  single  count, 
using  "and"  for  "or":  State  v.  Carr,  6  Or.  133;  State 
V.  Bergman,  6  Or.  341;  State  v.  Dale,  8  Or.  229. 

Dealing,  playing,  and  carrying  on  faro  constitute  one 
offense,  and  may  be  so  charged:  Id. 

The  language  of  the  statute  is  explicit  enough  for  the  in- 
dictment, without  further  description:  Id.;  State  v. 
Sam,  14  Or.  347. 

Requisites  and  sufficiency  of  indictment  for  perjury:  State 
V.  Spencer,  6  Or.  152;  State  v.  Witham,  6  Or.  366. 

Essentials  of  indictment  for  pubjic  nuisance:  State  v. 
Bergman,  6  Or.  341;  State  v.  Hume,  12  Or.  133. 

Indictment  for  gambling  need  not  name  the  game  or  de- 
vice, but  must  describe  the  device,  and  allege  that  it 
was  adapted  and  used  for  playing  games  for  money, 
etc. :  State  v.  Gitt  Lee,  6  Or.  425. 

Indictment  for  homicide  in  committing  robbery  need  not 
allege  that  the  killing  was  purposely  done:  State  v. 
Brown,  7  Or.  186. 

Separate  indictments  cannot  be  made  for  taking  of  three 
articles  belonging  to  the  same  person,  at  the  same  time 
and  place:  State  v.  McCormack,  8  Or.  236. 

Indictment  for  murder  may  state  the  facts  generally,  as 
provided  by  the  Code:  State  v.  Wintzingerode,  9  Or. 
153. 

Use  of  singular  instead  of  plural  verb,  where  charge  is 
evidently  meant  against  all  defendants,  does  not  viti- 
ate: State  V.  Lee  Ping  Bow,  10  Or.  27. 

In  an  indictment  for  "  stealing  from  and  on  the  person," 
the  phrase  "  and  on  "  is  surplusage  merely:  Id. 

Indictment  for  larceny  need  not  use  the  word  "steal"; 
"  feloniously  took  and  carried  away"  is  sufficient:  State 
V.  Lee  Yan  Yan,  10  Or.  365. 

One  present  aiding  and  abetting  may  be  convicted  under 
indictment  charging  him  directly  with  the  act:  State 
V.  Kirk,  10  Or.  505. 

Indictment  charging  defendant  with  ha\'ing  purposely, 
etc.,  killed  the  deceased  "  by  then  and  there  unlawfully 
and  feloniously  shooting  him,"  the  words  "  unlawfully 


C^tiMiNAL  Law.  175 

Criminal  Law  (continued). 

and  feloniously "  are  surplusage,  and  the  indictment 
charges  murder  in  the  first  degree:  State  v.  Abrams,  11 
Or.  169. 

Indictment  must  be  so  drawn  as  to  exclude  any  assump- 
tion that  it  may  be  proved  and  the  defendant  still  be 
not  guilty:  State  v.  Smith,  11  Or.  205. 

Indictment  for  assault  upon  an  officer  of  the  penitentiary 
must  allege  knowledge  that  he  was  such  officer:  Id. 

Indictment  for  rioting,  charging  robbery  also;  the  details 
related  regarding  the  robbery  are  surplusage:  State  v. 
Tom  Loney  and  Loo  Wan,  11  Or.  326. 

It  is  sufficient  for  such  indictment  to  allege  that  the  de- 
fendants "  did  encourage  other  persons  participating  " 
in  said  riot  to  acts  of  violence  and  force:  Id. 

The  intent  to  defraud,  in  uttering  forged  paper,  is  the  gist 
of  the  crime,  and  actual  defrauding  need  not  be  proved: 
State  V.  Lurch,  12  Or.  99. 

In  an  indictment  for  forgery,  the  person  defrauded  need 
not  be  named;  if  named,  must  be  proved  as  alleged: 
State  v.  Lurch,  12  Or.  104. 

Indictment  for  obstructing  highway,  when  and  how  the 
termini  and  locus  must  be  alleged:  State  v.  Ilume,  12 
Or-  133. 

Indictment  found  by  a  grand  jury  not  legally  called 
(under  act  of  1885)  is  invalid,  and  judgment  of  con- 
viction thereon  must  be  reversed:  State  v.  Lawrence,  12 
Or.  297. 

In  complaint  for  keeping  bawdy-hohse,  the  phrase  "will- 
fully and  unlawfully"  is  equivalent  to  and  implies 
"knowingly":  Wong  v.  Astoria,  13  Or.  538. 

In  complaint  for  violation  of  city  ordinance  (prior  to 
1885),  the  ordinance,  or  so  much  thereof  as  is  relied 
upon,  must  be  set  forth  or  recited:  Nodine  v.  Union, 
13  Or.  587. 

Where  the  offense  from  its  nature  continues  from  day  to 
day,  it  is  sufficient  to  charge  it  as  of  any  one  day:  State 
v.  Sam,  14  Or.  347.  '^ 

Indictment  charging  murder,  as  at  common  law,  is  suffi- 
cient to  sustain  verdict  of  murder  in  first  degree  under 
statute:  Leschi  v.  Territory,  1  W.  T.  13. 

The  peculiar  circumstances  distinguishing  murder  in  the 


176  Criminal  Law. 

Criminal  La"w  (continued). 

first  degree  under  statute  need  not  be  set  out  in  the  in- 
dictment: Id. 

Indictment  charging  statutory  offense  unknown  to  the 
common  law  should  charge  the  circumstances  and  in- 
tent mentioned  in  the  statute,  but  the  words  of  the  stat- 
ute need  not  be  used  if  equivalent  words  are  used:  Id. 

If  some  counts  in  indictment  are  good  and  some  bad,  ver- 
dict is  presumed  to  be  based  on  the  good  counts:  Id. 

Where  record  shows  that  grand  jury  appeared  in  open 
court,  and  their  foreman  in  their  presence  presented  a 
true  bill  properly  indorsed,  it  sufficiently  appears  that 
it  was  found  by  concurrence  of  at  least  twelve  .jurors: 
Watts  V.  Territory,  1  W.  T.  409. 

Oinission  of  word  "  feloniously  "  in  charging  homicide  is 
not  error,  if  the  indictment  follows  the  language  of  the 
statute:  Id. 

Not  necessary,  in  case  of  murder,  that  the  records  in  the 
trial  court  show  copy  of  indictment  was  served  upon 
the  prisoner:  Lytle  v.  Territory,  1  W.  T.  435;  Leonard 
V.  Territory,  2  W.  T.  381. 

Indictment  charging  stealing,  at  same  time  and  place,  of 
a  horse,  the  property  of  one  M.,  and  another  horse  the 
property  of ,  charges  but  one  offense,  a  single  trans- 
action: Territory  v.  Hey  wood,  2  W.  T.  180. 

Objection  to  such  indictment  for  charging  double  offense 
is  waived  by  failure  to  demur:  Id. 

Venue  is  sufficiently  set  out  as  being  in  King  County  by 
charging  the  offense  was  committed  in  Seattle,  the 
court  taking  judicial  knowledge  of  the  fact  that  Seattle 
is  in  King  County:  Schilling  v.  Territory,  2  W.  T.  283. 

Indictment  for  murder  in  the  first  degree  must  not  only 
allege  the  assault  and  shooting  to  have  been  done  pur- 
posely, and  of  deliberate  and  premeditated  malice,  but 
must  charge  the  same  of  the  killing  itself:  Leonard  v. 
Territory,  2  W.  T.  381. 

AVords  in  the  conclusion  of  the  indictment  do  not  supply 
such  essential  averment,  and  are  but  an  inference  of  the 
grand  jury  from  their  former  statement,  which  the  lan- 
guage will  not  admit:  Id. 

Statute  regarding  liberal  construction  of  criminal  plead- 
ings does  not,  while  doing  away  with  the  technicalities 


Criminal  Law.  177 

Ci'iminal  Law  (continued). 

of  the  common  law,  ignore  the  necessity  of  expressing 

the  charge  in  adequate  language:  Id. 
Form  of  indictment  for  murder  in  the  first  degree  given: 

Id. 
4.  Evidence. 

For   opinion   evidence,   res  gestae,  character,  admissions 

and  declarations,  confessions,  and  dying  declarations, 

see  Evidence. 
State  need  do  no  more  than  prove  the  substantive  offense 

charged:  Frisbie  v.  State,  1  Or.  248. 
Allegation  of  sale  of  whisky,  being  under  a  videlicet,  will 

be  supported  by  proof  of  sale  of  any  kind  of  spirituous 

liquor:  Id. 
Kind  of  liquor  being  stated  under  ridelicet,  will  excuse 

strict  proof,  unless  essentially  descriptive:  Id. 
Allegations  of  names,  sums,  dates,  and  the  like,  must  be 

strictly  proven:  Shirley  v.  State,  1  Or.  269. 
Receipt  for  sixty-five  dollars,  to  prove  allegation  of  forg- 
ing receipt  for  sixty  dollars,  is  fatal  variance:  Id. 
Conspiracy  to  murder,  evidence  and  instructions:  State 

V.  Fitzhugh,  2  Or.  227. 
Inconsistent  statements  of  witness  made   at  other  times 

are  not  evidence  of  the  facts  stated  in  such  declarations,. 

but  simply  tend  to  impeach  his  character  for  truth:  Id. 
Refusal  of  court  to  allow  a  question  tending  to  show  hos- 
tility of  witness;  held,  not  to  prejudice  the  defendant's 

rights  under  the  circumstances  of  the  case:  Id. 
Not  error  for  court  to  allow  witness  to  inspect  a  writtea 

deposition  made  by  her  in  a  former  examination  before 

answering  as  to  its  contents:  State  v.  Taylor,  3  Or.  10. 
Where  conversations  are  admissible  in  evidence,  the  whole 

conversation  may  be  admitted:  Id. 
Reasonable  doubt  defined:    State  v.  Conally,  3  Or.  69; 

State  V.  Glass,  5  Or.  73;  State  v.  Ah  Lee,  7  Or.  237; 

State  V.  Anderson,  10  Or.  448;  State  v.  Abrams,  11  Or. 

169;  Smith  v.  United  States,  1  W.  T.  262;  Leonard  v. 

Territory,  2  W.  T.  381. 
Burden  of  proof  in  homicide  case,  after  the  shooting  pur- 
posely is  shown,  is  on  defendant  to  show  justification  or 

excuse;  State  v.  Conally,  3  Or.  69. 
Rule  in  regard  to  reasonable  doubt  does  not  apply  to  jus- 

Ou.  Dig.— 12 


178  Criminal  Law. 

Criminal  Law  (continued). 

tification  or  excuse,  but  defendant  must  show  such  de- 
fense by  preponderance  of  evidence:  Id. 

The  question  whether  the  killing  was  necessary  to  prevent 
felony  is  to  be  determined  by  preponderance  of  evidence: 
Id. 

Time,  and  kind  of  liquor  sold  need  not  be  strictly  proved; 
but  where  the  name  of  the  person  to  whom  it  was  sold 
is  stated  in  the  indictment,  it  must  be  strictly  proved: 
State  V.  Cutting,  3  Or.  260. 

Evidence  of  sale  of  liquor  in  violation  of  liquor  license 
law:  Id. 

The  burden  of  proof  is  on  the  defendant  to  show  that  he 
is  licensed:  Id. 

Proof  of  shooting  with  revolver  will  sustain  allegation  of 
shooting  with  a  pistol:  State  v.  Dodson,  4  Or.  64. 

Threats  and  conduct  of  deceased,  in  homicide  case,  toward 
the  prisoner  some  days  before  the  killing,  maj'^  be  shown 
under  defense  of  justification  inproof  of  self-defense:  Id. 

Prosecution  need  not  prove  the  case  to  an  absolute  moral 
certainty,  to  the  exclusion  of  any  other  hypothesis  being 
true:  State  v.  Glass,  5  Or.  73. 

When  the  charge  is  manslaughter,  committed  by  attempt- 
ing to  procure  abortion,  evidence  of  prior  attempt  of  de- 
ceased to  effect  such  purpose  is  immaterial,  unless  such 
attempt  contributed  to  her  death:  Id. 

Evidence  of  attempts  of  prisoner  to  escape  is  admissible, 
and  tends  to  prove  his  guilt:  State  v.  Garrand,  5  Or.  216. 

On  trial  for  assault  with  intent  to  kill,  defendant  cannot 
show  in  justification  that  prior  to  the  affray  he  made 
complaint  before  a  magistrate,  and  sought  to  have  the 
assaulted  party  bound  over  to  keep  the  peace:  State  v. 
Doty,  5  Or.  491. 

Evidence  of  dealing,  playing,  and  carrying  on  faro,  at  one 
time,  with  the  same  parties,  sustains  indictment  as  one 
offense:  State  v.  Carr,  6  Or.  133. 

Allegation  of  larceny  of  the  property  of  A  is  not  sustained 
by  proof  that  the  property  belonged  to  A  and  B,  as  part- 
ners, unless  a  special  ownership  and  possession  in  A  is 
proved:  State  v.  Wilson,  6  Or.  428. 

Laws  of  a  foreign  country  must  be  proved  as  facts:  State 
V.  Moy  Looke,  7  Or.  54. 


Criminal  Law.  179 

Criminal  Law  (continued). 

Unwritten  law  of  a  country  cannot  be  proved  by  historical 
works,  but  by  oral  testimony,  or  published  decisions: 
Id. 

Validity  of  a  marriage  under  Chinese  law,  proved  by 
documentary  evidence,  is  a  question  for  the  court:  Id. 

Proof  of  statement  sworn  to  by  person  charged  with  per- 
.  jury,  differing  in  the  date  from  the  statement  alleged  in 
the  indictment,  is  a  material  variance:  State  v.  Ah  Sam, 
7  Or.  477. 

Testimony  of  accomplice  will  not  alone  warrant  convic- 
tion: State  V.  Odell,  8  Or.  30. 

Proof  that  the  prisoner  was  in  the  same  town  at  the  time 
is  not  sufficient  corroboration:  Id. 

Evidence  in  a  homicide  case  of  the  fact  that  two  guns 
were  found  after  the  shooting,  secreted  under  the  bed 
of  the  defendant,  is  admissible:  State  v.  Wintzingerode, 
9  Or.  153. 

Money  of  a  kind  known  to  have  been  possessed  by  the 
deceased  may  be  shown  to  have  been  in  the  defendant's 
possession  the  day  after  the  killing:  Id. 

Evidence,  if  relevant  to  the  issue,  is  not  rendered  inad- 
missible for  the  reason  that  it  tends  to  prove  the  ac- 
cused guilty  of  collateral  offenses:  Id. 

Evidence  that  the  person  robbed  had  money  shortly  be- 
fore the  alleged  theft  is  admissible,  when  accompanied 
by  evidence  of  the  stealing  from  the  person:  State  v. 
Lee  Ping  Bow,  10  Or.  27. 

Defendant  offering  himself  as  a  witness  in  his  own  behalf 
subjects  himself  to  the  same  rules  of  cross-examination 
as  an  ordinary  witness,  but  may  not  be  examined  as  to 
matters  not  testified  to  on  direct  examination:  State  v. 
Abrams,  11  Or.  169;  State  v.  Lurch,  12  Or.  99;  State  v. 
Saunders,  14  Or.  300;  Thompson  v.  Territory,  1  W.  T. 
547. 

The  substance  of  contradictory  statements  only,  imputed 
to  a  witness  in  the  impeaching  questions,  need  be 
proved  to  impeach  him:  Id. 

The  conduct  of  a  party,  and  what  he  did  at  the  time,  is 
competent  evidence  in  the  issue  whether  he  was  in- 
toxicated: Id. 

The  presumption  is,  that  evidence  was  admitted  for  proper 


180  Criminal  Law. 

Criminal  Law  (continued). 

purpose,  where  it  was  equally  applicable  to  either  of 
two  purposes,  one  proper  and  the  other  not:  Id. 

Experiments  to  furnish  data  for  certain  inferences  must 
have  been  based  on  conditions  similar  to  those  existing 
in  the  case  on  trial:  State  v.  Justus,  11  Or.  178. 

Experiments,  made  by  non-professional  witnesses,  with  a 
gun  upon  paste-boards,  to  show  powder-burns,  and  to 
raise  inference  that  deceased  came  to  his  death  from 
near  gunshot  wound,  inadmissible:  Id. 

The  admission  of  expert  testimony  upon  the  issue  of 
whether  the  gun  was  fired  near  to  deceased  or  from  a 
distance,  when  the  killing  is  not  susceptible  of  direct 
proof:  Id.  , 

Upon  trial  for  obtaining  money  by  false  pretenses,  by  giv- 
ing certain  forged  instruments,  defendant  may  show 
that  the  signatures  on  the  face  of  the  notes  were  made 
by  him  in  his  own  handwriting,  by  authority  of  the 
persons  whose  names  were  signed:  State  v.  Lurch,  12 
Or.  95. 

In  forgery  case,  proof  that  the  signature  to  the  note  is  in 
a  simulated  hand  is  admissible,  though  the  defendant 
admits  signing  it,  claiming  to  have  had  authority: 
State  v.  Lurch,  12  Or.  99;  S.  C,  12  Or.  104. 

State  cannot,  after  defendant  testifies  he  did  not  sign, 
have  him,  on  cross-examination,  write  his  name  for 
comparison:  Id. 

In  forgery,  it  is  not  necessary  to  name  in  the  indictment 
the  person  defrauded,  but  having  done  so,  the  allega- 
tion must  be  proved  as  alleged:  State  v.  Lurch,  12  Or. 
104. 

Attention  of  witness  may  be  called  to  inconsistent  state- 
ments made  at  other  times,  and  if  he  denies  them,  wit- 
nesses may  be  called  to  prove  his  having  made  them: 
State  v.  Lurch,  12  Or.  104;  Thompson  v.  Territory,  1 
W.  T.  547. 

Declarations  of  hostility  and  contradictory  statements  are 
admitted  to  impeach  a  witness  upon  the  same  footing: 
State  V.  Mackey,  12  Or.  154. 

The  only  presumption  arising  from  the  possession  of  prop- 
erty recently  stolen  is  one  of  fact,  not  of  law:  State  v. 
Hale,  12  Or.  352. 


Criminal  Law.  181 

Criminal  Law  (continued). 

It  may  be  sliown  on  cross-examination  of  a  witness  that 
be  lias  been  convicted  of  crime,  including  felony  and 
misdemeanor,  and  the  record  may  be  introduced  to 
prove  that  fact:  State  v.  Bacon,  13  Or.  143. 

Witness  may  be  asked  whether  he  has  been  arrested  for 
commission  of  a  certain  crime,  for  purpose  of  discredit- 
ing the  witness:  Id. 

Proof  that  the  accused  had  obtained  a  gun  at  a  distant 
point,  and  was  seen  at  different  places  before  the  murder, 
carrying  it  toward  the  place  where  the  crime  was  com- 
mitted, is  not  rebutted  by  proof  that  he  was  seen  with- 
out it  at  one  place  on  the  way,  and  such  evidence  is  not 
admissible:  State  v.  O'Neil,  13  Or.  183. 

In  criminal  cases,  especially  where  life  is  involved,  a  lib- 
eral rule  should  be  adopted  in  the  receipt  of  evidence  for 
the  defense:  Id.;  State  v.  Mah  Jim,  13  Or.  235. 

Any  question  which  tends  to  show  bias  or  prejudice  of 
witness  against  the  accused  is  competent:  Id. 

Counsel  should  be  allowed  to  pursue  their  own  course  in 
eliciting  testimony  so  long  as  they  keep  within  bounds: 
Id. 

To  constitute  the  offense  of  frequenting  an  opium  den 
would  require  more  than  one  visit;  how  many  is  a 
question  of  mixed  law  and  fact:  State  v.  Sam,  14  Or. 
347. 

Testimony  of  an  accessary  before  the  fact  is  not  admissi- 
ble in  behalf  of  the  prisoner:  Edwards  v.  Territory,  1 
W.  T.  195. 

Evidence  of  the  dangerous  character  of  the  deceased  is  not 
admissible  in  homicide  case  where  there  is  no  evidence 
tending  to  show  an  assault  or  threatened  assault  on  his 
part:  Smith  v.  United  States,  1  W.  T.  262. 

The  distinction  between  an  exhibit  and  the  testimony  of 
a  witness,  whether  oral  or  in  writing,  pointed  out:  Doc- 
tor Jack  v.  Territory,  2  W.  T.  101. 

Court  properly  refused  to  admit  on  behalf  of  the  defense 
a  map  to  illustrate  the  situation,  the  saiBe  being  loaded 
with   explanatory   matter   in   the   nature*  of  hearsay: 
Leonard  v.  Territory,  2  W.  T.  381. 
5.   Defenses. 

That  Congress  has  already  passed  a  law  for  punishment 


182  Criminal  Law. 

Criminal  Law  (continued). 

of  persons  selling  liquor  to  Indians  is  no  bar  to  convic- 
tion under  territorial  statute  for  such  offense:  Territory 
V.  Coleman,  1  Or.  191. 

The  law  of  self-defense  examined  and  discussed:  Goodall 
V.  State,  1  Or.  333;  State  v.  Conally,  3  Or.  69;  State  v. 
Dodson,  4  Or.  64. 

Evidence  of  threats  of  threats  of  deceased  as  proving  the 
killing,  justifiable  in  homicide:  State  v.  Dodson,  4  Or.  64. 

Conviction  of  disturbing  the  peace  before  city  recorder 
no  bar  to  a  subsequent  prosecution  in  the  Circuit  Court 
for  assault  and  battery:  State  v.  Sly,  4  Or.  277. 

Evidence  that  the  accused,  prior  to  the  affray,  made  com- 
plaint before  a  magistrate,  charging  the  assaulted  party 
with  having  previously  threatened  his  life,  and  asking 
to  have  him  put  under  bonds  to  keep  the  peace,  is  not 
admissible  in  assault  with  intent  to  kill:  State  v.  Doty, 
5  Or.  491. 

Objection  to  the  right  of  the  trial  judge  to  hold  the  office 
of  judge  cannot  be  made  collaterally  in  a  criminal  case: 
State  V.  Whitney,  7  Or.  386. 

That  an  attorney  employed  to  assist  the  prosecution  was 
present  before  the  grand  jury  when  the  indictment  was 
found  is  no  ground  for  reversal  after  judgment:  Id.; 
State  V.  Justus,  11  Or.  178. 

Former  conviction  on  an  indictment  for  taking  saddle 
and  bridle  is  a  defense  to  subsequent  prosecution  for 
larceny  of  horse  at  same  time  and  place  belonging  to 
the  same  person:  State  v.  McCormack,  8  Or.  236. 

Former  conviction  of  assault  and  battery  no  defense  to 
charge  of  kidnaping:  State  v.  Stewart,  11  Or.  52;  S.  C, 
11  Or.  238. 

Insanity  as  a  defense  to  crime:  State  v.  Murray,  11  Or. 
413;  McAllister  v.  Territory,  1  W.  T.  360. 

Defendant  accused  of  obtaining  money  by  false  pretenses 
by  forged  signatures  to  notes  may  prove  that  the  sig- 
natures were  written  by  him  with  authority:  State  v. 
Lurch,  12  Or.  95. 
6.    Instuuctions. 

The  court  is  justified  in  instructing  that  there  is  no  evi- 
dence on  a  certain  point:  Latshaw  v.  Territory,  1  Or. 
140;  State  v.  Garrand,  5  Or.  216. 


Criminal  Law.  183 

Criminal  La^w  (continued). 

No  error  to  refuse  to  instruct  on  points  on  which  there  is 
no  evidence:  Latshaw  v.  Territory,  1  Or.  140;  State  v. 
Glass,  5  Or.  73;  Doctor  Jack  v.  Territory,  2  W.  T.  101. 

It  is  error  to  instruct  that  if  the  liquor  was  given  gratui- 
tously, it  would  sustain  the  indictment  for  selling  with- 
out license  equally  as  if  it  had  been  sold  and  paid  for: 
Wood  V.  Territory,  1  Or.  223. 

Error  to  refuse  to  instruct  that  if  the  liquor  was  gratui- 
tously given,  without  consideration,  the  defendant  could 
not  be  convicted:  Id. 

Instructions  as -to  law  of  self-defense:  Goodall  v.  State,  1 
Or.  333;  State  v.  Conally,  3  Or.  69. 

Instructions  as  to  degree  of  certainty  necessary  to  be 
proved,  and  reasonable  doubt:  State  v.  Conally,  3  Or. 
C9;  State  v.  Glass,  5  Or.  73;  State  v.  Ah  Lee,  7  Or.  237; 
State  V.  Anderson,  10  Or.  448;  State  v.  Abrams,  11  Or. 
169;  Smith  v.  United  States,  1  W.  T.  262;  Leonard  v. 
Territory,  2  W.  T.  381. 

Where  in  homicide  case  there  is  no  evidence  to  reduce  the 
crime  from  murder  in  the  first  degree,  the  court  may 
so  instruct:  State  v.  Garrand,  5  Or.  216;  State  v.  Whit- 
ney, 7  Or.  386;  Smith  v.  United  States,  1  W.  T.  262. 

But  where  the  defendant  does  not  admit  the  degree 
charged,  and  there  is  any  conflict  of  testimony  as  to 
premeditation,  it  is  erroneous  to  so  charge:  State  v.  Ah 
Lee,  7  Or.  237;  State  v.  Whitney,  7  Or.  386;  State  v. 
Grant,  7  Or.  414. 

Instruction  assuming  that  an  admission  on  the  trial  that 
the  deceased  was  killed  by  gunshot,  at  the  time  and 
place  charged,  was  an  admission  that  he  was  murdered, 
is  erroneot^s:  State  v.  Whitney,  7  Or.  386. 

Not  error  for  the  court  to  give  the  jury  a  general  descrip- 
tion of  the  offense,  although  embracing  njodes  of  com- 
mission not  pertinent  to  the  case,  provided  the  defini- 
tion be  subsequently  given  as  applicable  to  the  pleadings 
and  testimony:  State  v.  Anderson,  10  Or.  448. 

Where  the  court  gives  a  correct  definition  of  reasonable 
doubt,  it  is  no  error  to  refuse  to  give  an  equally  correct 
one:  Id. 

There  is  no  difference  between  an  occurrence  "directly 
tending  "  to  prove  a  prior  fact,  and  one  which  "  tends  " 


184  Criminal  Law. 

Criminal  Law  (continued). 

to  prove  it,  and  an  instruction  based    on  a  supposed 
distinction  between  them  is  immaterial:  Id. 

The  entire  charge  of  the  court  must  be  considered  to 
ascertain  the  meaning  and  effect  of  any  particular  por- 
tion excepted  to:  Id. 

It  is  error  to  instruct  the  jury  not  to  regard  ''  mere  slight 
variances "  between  the  testimony  of  witnesses  as  af- 
fecting their  credit:  State  v.  Swayze,  11  Or.  357. 

Plea  of  not  guilty  puts  in  issue  the  fact  of  the  killing  as 
well  as  the  premeditation  and  malice,  and  an  instruc- 
tion assuming  the  killing  proved  is  erroneous:  State  v. 
Mackey,  12  Or.  154. 

The  phrase  used  in  instruction,  "  You  may  consider  this 
as  a  circumstance  in  determining  the  guilt  or  innocence 
of  the  defendant,"  does  not  imply  that  innocence  is  a 
fact  to  be  established:  State  v.  O'Neil,  13  Or.  183. 

Instruction  as  to  intent  to  be  judged  by  the  jury,  on  trial 
under  indictment  for  selling  or  offering  for  sale  oleo- 
margarine unmarked,  held  not  erroneous:  State  v. 
Dunbr.r,  13  Or.  591. 

Statement  of  the  effect  at  common  law  of  a  disagreement 
of  jury,  and  the  mitigation  of  the  rule  in  United  States, 
with  the  remark  that  jury  would  have  to  stay  together 
and  not  separate  until  verdict  found,  is  hot  objection- 
able as  assuming  the  case  was  so  plain  that  jury  would 
not  be  justified  in  failing  to  agree:  State  v.  Saunders, 
14  Or.  300. 

The  Supreme  Court  will  not  review  erroneous  instructions 
on  mere  abstract  principles,  of  law:  Yelm  Jim  v.  Terri- 
tory, 1  W.  T.  63. 

Bill  of  exceptions  must  show  whether  instructions  given 
or  refused  were  pertinent  to  the  case,  in  order  for 
Supreme  Court  to  examine  them:  Id. 

Where  a  fact  has  been  proved  beyond  all  controversy,  it 
is  not  error,  in  giving  instructions,  to  mention  it  as  a 
fact  in  the  case:  Edwards  v.  Territory,  1  W.  T.  195. 

Where  the  court  withheld  instructions  on  manslaughter, 
telling  the  jury  that  if,  having  deliberated,  they  desired 
instructions  on  that  subject,  he  would  give  them,  no 
error  was  committed:  Smith  v.  United  States,  1  W.  T. 
262. 


Criminal  Law.  185 

Criminal  Law  (continued). 

Not  error  to  refuse  to  instruct  that  where  one  of  two 
combatantB  kills  a  third  person,  who  interferes  without 
reasonjible  notice  to  prevent  one  of  the  contestants  from 
killing  the  other,  such  killing  cannot  b*  murder  in  the 
first  degree:  McAllister  v.  Territory,  1  AV.  T.  3G0. 

The  court  properly  refused  to  instruct  the  jury  that  if, 
while  two  persons  are  engaged  in  fighting,  a  third  per- 
son assaults  one  of  the  combatants,  and  is  killed  by 
him,  such  killing  is  no  more  than  manslaughter:  Id. 

Court  may,  after  the  return  of  the  jury  into  court  with 
their  verdict,  but  before  the  reception  of  the  same,  cor- 
rect any  erroneous  instruction  that  may  have  been 
given,  and  send  them  back  again  to  deliberate:  Doctor 
Jack  V.  Territory,  2  W.  T.  101. 

There  being  no  evidence  in  the  case  to  show  that  the 
fatal  blow  was  accidental  or  given  in  self-defense,  it 
was  not  necessary  for  the  court  to  qualify  its  instruc- 
tions to  meet  such  evidence:  Id. 

Instructions  that  jury  might  assume,  if  the  name  of  the 
owner  of  property  stolen  is  unknown  to  them  at  time  of 
trial,  that  it  was  unknown  to  the  grand  jury  at  time 
indictment  was  found,  is  not  erroneous:  Territory  v. 
Heywood,  2  W.  T.  180. 

Instruction  that  the  fact  that  prisoner  does  not  disprove 
circumstances,  if  the  jury  believe  he  has  the  means  of 
disproving  them  if  false,  lends  additional  weight  to  such 
as  are  proved,  is  erroneous:  Leonard  v.  Territory,  2 
W.  T.  381. 

Instruction  not  leaving  jury  to  find  whether  the  killing 
was  justifiable  or  excusable  is  erroneous:  Id. 

So  an  instriK^tion  that  does  not  make  malice  essential  to 
either  degree,  or  inform  the  jury  that  in  order  to  con- 
stitute murder  in  either  degree,  the  malice,  and  not 
merely  the  killing,  must  be  deliberate  and  premed- 
itated, does  not  correspond  with  the  law:  Id. 
7.  Practice  and  Incidknts  of  Trial. 

Court  may  amend  the  record  during  the  term  to  conform 
with  the  facts:  Howell  v.  State,  1  Or.  241. 

Continuance  not  granted  where  it  is  not  satisfactorily 
shown  that  the  evidence  can  probably  be  had  at  the 
next  term:  State  v.  Leonard,  3  Or.  157. 


186  Criminal  Law. 

Criminal  Law  (continued). 

Error  to  receive  verdict  in  the  absence  of  the  prisoner  in 
a  felony  case:  State  v.  Spores,  4  Or.  198. 

The  trial  includes  the  rendition  and  receiving  of  the  ver- 
dict: Id. 

Court  has  power  to  communicate  with  jury  through  the 
bailiff  while  deliberating,  and  such  action  will  not  be 
ground  for  reversal  where  no  injury  was  occasioned: 
State  V.  Garrand,  5  Or.  216. 

Motion  to  quash  indictment  on  account  of  a  stranger 
having  been  present  during  the  proceedings  before  the 
grand  jury,  is  properly  overruled,  and  such  objections 
are  waived  by  going  to  trial  without  objecting:  State  v. 
Whitney,  7  Or.  386;  State  v.  Justus,  11  Or.  178. 

Omission  to  provide  for  presence  of  defendant  or  his 
counsel,  on  view  by  the  jury,  is  not  error  where  not 
requested:  State  v.  Ah  Lee,  8  Or.  214. 

Verdict  may  be  received,  notwithstanding  counsel  for 
defendant  is  absent:  State  v.  Lee  Ping  Bow,  10  Or.  27. 

Improper  remarks  of  district  attorney  must  be  objected 
to,  and  exception  saved  at  the  time:  Id. 

Record  showing  that  defendant  was  "  given  an  opportu- 
nity to  make  a  statement "  before  sentence,  sufficiently 
shows  that  he  was  asked  "if  he  had  anything  to  say 
why  sentence  should  not  be  passed":  State  v.  Cart- 
wright,  10  Or.  193. 

Witness  examined  by  the  grand  jury,  whose  name  is  not 
put  on  the  indictment,  may,  nevertheless,  be  examined 
by  the  prosecution  where  the  defendant  was  not  thereby 
misled:  State  v.  Anderson,  10  Or.  448. 

Mere  objection  and  exception  to  improper  remarks  of  the 
district  attorney  will  not  avail:  Id.;  State  v.  Abrams, 
11  Or.  169. 

Record  held  sufficient  as  to  arraignment:  State  v.  Abrams, 
11  Or.  169. 

Time  of  trial  may  be  set  by  the  court  when  the  defendant 
is  not  present:  Id. 

Keeping  shackles  on  prisoner  during  trial,  without  evident 
necessity,  when  objected  to,  is  error:  State  v.  Smith,  11 
Or.  205. 

Granting  or  refusing  continuance  is  discretionary:  State 
V.  O'Neil,  13  Or.  183;  Thompson  v.  Territory,  'l  W.  T. 
647. 


Criminal  Law.  187 

Criminal  Law  (continued). 

In  adidavit  for  continuance,  it  is  not  sufficient  to  allege 
belief  that  witness  can  be  had;  but  the  affidavit  must 
show  the  grounds  for  the  belief:  Id. 

Trial  of  prisoner  without  entering  his  plea  is  ground  for 
reversal:  Palmer  v.  United  States,  1  W.  T.  5. 

Record  showing  that  the  jury  was  "duly  sworn,"  suffi- 
ciently shows  that  the  proper  oath  was  administered: 
Lesehi  v.  Territory,  1  W.  T.  13. 

Courts  have  power  to  restrain  counsel  and  keep  them 
within  proper  limits:  Id. 

It  sufficiently  appears  by  the  record  in  this  case  that  the 
defendant  was  present  when  verdict  was  rendered  and 
sentence  passed:  State  v.  Cartwright,  10  Or.  193;  Lesehi 
V.  Territory,  1  W.  T.  13. 

Where  the  record  shows  the  impaneling  of  grand  jury 
void,  an  indictment  returned  by  it  is  a  nullity,  and 
the  court  should  stay  the  proceedings  as  soon  as  its  at- 
tention is  directed  thereto:  Yelm  Jim  v.  Territory,  1 
W.  T.  G3. 

If  objection  to  a  jtiror  be  not  taken  at  the  time  of  impan- 
eling the  jury,  it  is  waived:  Clarke  v.  Territory,  1  W.  T. 
68. 

Arraignment  defined;  it  cannot  be  waived  in  murder  case: 
Elick  V.  Territory,  1  W.  T.  136. 

Consent  of  counsel  to  enter  plea  of  not  guilty  will  not  dis- 
pense with  arraignment:  Id. 

Prisoner  must  personally  enter  his  plea,  unless  shown  to 
be  incapacitated:  Id. 

In  the  trial  of  one  unacquainted  with  the  English  lan- 
guage, a  sworn  interpreter  should  be  provided:  Id. 

In  such  casevthe  charge  must  be  explained,  and  the  plea 
entered  through  the  interpreter,  who  must  also  make 
known  the  evidence  to  the  accused,  as  the  trial  proceeds: 
Id. 

Record  not  showing  prisoner  in  court  when  verdict  was 
returned,  or  showing  that  disposition  was  made  of  the 
jury  in  adjourning  from  day  to  day,  is  insufficient: 
Shapoonmash  v.  United  States,  1  W.  T.  188. 

Not  error  to  submit  to  jury  written  charge  of  the  court,  or 
permit  them  to  take  statutes  to  the  jury-room:  Edwards 
V.  Territory,  1  W.  T.  195. 


188  Cetmtnal  Law. 

Criminal  Law  (continued). 

The  court  is  always  deemed  open  for  the  purposes  con- 
nected with  a  cause  submitted  to  a  jury,  and  may  re- 
ceive verdict  after  adjournment  at  night  and  before  the 
meeting  of  court  the  next  morning:  Id. 

Not  error  to  place  jury  in  charge  of  a  sworn  officer  of  the 
court,  who  has  been  called  upon  to  testify  for  the  terri- 
tor}^  on  the  trial:  Id. 

Allowing  one  or  more  jurors  to  retire  from  the  jury-room 
for  a  necessary  purpose,  under  the  direct  super^'ision  of 
the  officer,  is  not  regarded  as  a  separation  of  the  jury: 
Id. 

It  is  competent  for  the  prosecuting  officer  of  the  United 
States  to  enter  a  nolle  any  tim^  before  verdict:  Smith 
V.  United  States,  1  W.  T.  262. 

Errors  committed  under  an  indictment  discharged  cannot 
be  taken  advantage  of  under  a  subsequent  indictment, 
unless  proper  objection  be  made  under  the  latter  indict- 
ment: Id. 

It  is  not  necessary  in  murder  case  that  the  records  show 
that  copy  of  indictment  was  served  on  the  defendant: 
Lytic  V.  Territory,  1  W.  T.  435. 

Addition  of  the  words  "and  the  law  as  given  by  the 
court"  to  the  statutory  oath  to  jury,  is  not  error:  Harti- 
gan  V.  Territory,  1  W.  T.  447;  and  see  Leonard  v.  Ter- 
ritory, 2  W.  T.  38L 

Separation  of  jury  in  capital  case,  with  consent  of  defend- 
ant and  prosecuting  attorney,  is  of  doubtful  propriety, 
but  no  ground  for  reversal  unless  shown  to  have  been 
an  injury:  Id. 

Where  the  defendant  and  his  counsel  have  consented  to 
separation  of  jury,  they  should  be  estopped  to  object 
thereto:   Id. 

The  object  of  the  statute  that  the  accused  "shall  be  tried 
at  the  next  term  of  court  after  he  was  imprisoned  "  was  to 
secure  speedy  trials,  and  not  to  promote  delay:  Thomp- 
son V.  Territory,  1  W.  T.  547. 

One  charged  with  crime  is  entitled  to  continuance  only  in 
case  he  make  the  showing  therefor  required  in  other 
cases:  Id. 

Court  may,  before  verdict  is  received,  though  after  jury 
returns  into  court  'therewith,  correct  the  instructions 


Criminal  Law.  189 

Criminal  Law  (continued). 

given,  and  send  the  jury  back  for  further  deliberation: 
Doctor  Jack  v.  Territory,  2  W.  T.  101. 

Not  error  to  permit  jury  to  take  to  jury-room  hat  and  gar- 
ment offered  in  evidence:   Id. 

The  intention  of  the  statute  allowing  the  jury  to  take  to  the 
jury-room  all  papers  admitted  in  evidence  is  to  allow 
them  to  take  all  exhibits  admitted  in  evidence:  Id. 
8.   Appeal  and  Error  in  Criminal  Cases. 

The  plea  in  millo  est  erratum,  in  proceedings  on  error,  oper- 
ates as  a  demurrer,  not  as  a  confession:  0' Kelly  v.  Ter- 
ritory, 1  Or.  51. 

Court  may  aflfirm  or  reverse  judgment,  but  not  modify  it: 
Howell  V.  State,  1  Or.  241. 

As  a  general  rule  affirmance  is  final,  but  court  will  hold 
discretionary  control  of  the  case  for  purposes  of  a  re- 
hearing: McDonald  v.  Crusen,  2  Or.  259. 

Statement  of  errors  relied  on  is  not  necessary  in  the  notice 
of  appeal;  rule  adopted  requiring  the  same  to  be  fur- 
nished on  demand:  State  v.  Ellis,  3  Or.  497. 

Bill  of  exceptions  must  show  that  the  question  was  raised 
and  passed  upon  by  the  Circuit  Court:  State  v.  Dodson, 
4  Or.  G4. 

Order  to  be  appealable  must  affect  a  substantial  right  and 
determine  the  action:  State  v.  Brown,  5  Or.  119. 

How  notice  must  be  served  when  the  state  appeals:  Id. 

An  appeal  does  not  vacate  the  judgment  appealed  from: 
Whitley  v.  Murphy,  5  Or.  328. 

When  appeal  abates  by  death  of  the  accused  the  judgment 
remains  in  full  force:  Id. 

When  defendant  appeals  from  Justice's  Court,  the  appeal 
is  taken  ae  in  civil  cases,  except  that  notice  is  to  be 
served  on  the  district  attorney  or  private  prosecutor: 
State  V.  Zingsem,  7  Or.  137. 

On  appeal  to  Circuit  Court,  if  appellant  fails  to  file  origi- 
nal notice  with  proof  of  service,  in  the  Justice's  Court, 
and  no  appeal  is  allowed  or  transcript  filed,  no  appeal 
is  .taken,  and  Circuit  Court  can  enter  no  judgment 
against  defendant  or  his  sureties:  Id. 

The  provisions  of  section  531  of  Civil  Code  (sec.  541,  Hill's 
A.  L.)  do  not  affect  appeals  in  criminal  cases:  State  v. 
Bovee,  11  Or.  57. 


190  Criminal  Law. 

Criminal  Law  (continued). 

Appeal  in  criminal  cases,  taken  during  a  term  of  the  Su- 
preme Court  may,  in  its  discretion,  be  heard  at  same 
term:  Id. 

Order  enlarging  the  time  within  which  clerk  must  prepare 
and  transmit  transcript  must  be  made  by  the  trial  court: 
Id. 

In  suing  out  writs  of  error,  where  service  on  the  United 
States  is  necessary,  the  United  States  attorney  must  be 
served;  service  on  his  assistant  will  not  avail:  Bennet 
V.  United  States,  2  W.  T.  179. 

Where  United  States  is  a  party,  the  rule  of  practice  of  the 
common  law,  modified  to  be  applicable,  should  govern, 
-the  legislature  not  having  provided  a  rule  of  practice: 
Id. 

The  Supreme  Court  will  take  no  notice  of  an  ex  parte  affi- 
davit filed  with  the  papers  of  the  case,  but  not  embodied 
in  the  bill  of  exceptions:  Fox  v.  Territory,  2  W.  T.  297. 

Overruling  motion  for  new  trial  cannot  be  alleged  as  error: 
Brown  v.  State,  1  Or.  270;  State  v.  Fitzhugh,  2  Or.  227; 
State  V.  Wilson,  6  Or.  428;  State  v.  Mackey,  12  Or.  154; 
State  V.  Becker,  12  Or.  318;  Wassissimi  v.  Territory,  1 
W.  T.  6;  Smith  v.  United  States,  1  W.  T.  262. 

Court  is  bound  by  the  record,  and  will  not  search  for  error 
outside  thereof:  O'Kelly  v.  Territory,  1  Or.  51;  State  v. 
Wilson,  6  Or.  428. 

Court  will  presume  evidence  supported  instruction  given, 
where  bill  of  exception  does  not  purport  to  give  all  the 
evidence:  State  v.  Lee  Yan  Yan,  10  Or.  365. 

Motion  based  on  facts  therein  stated,  but  not  otherwise 
appearing  in  the  record,  cannot  be  considered  on  appeal: 
•  State  V.  Anderson,  10  Or.  448. 

No  objection  to  the  proceedings  in  the  Circuit  Court  in 
any  case  can  be  considered  in  the  Supreme  Court,  which 
has  not  in. effect  been  passed  upon  by  the  lower  court: 
State  V.  Abrams,  11  Or.  169. 

Where  evidence  was  admitted  without  objection,  it  is  pre- 
sumed to  have  been  admitted  for  a  proper  purpose 
rather  than  an  improper,  when  applicable  to  either: 
Id. 

Where  the  error  did  not  prejudice  appellant,  reversal  will 
not  be  granted  generally;  but  where  the  error  violates 


Custody  of  Children.  191 

Criminal  Law  (continued). 

a  constitutional  guaranty  of  personal  liberty,  the  law 
will  presume  an  injury:  State  v.  Lurch,  12  Or.  99. 

Action  of  trial  court  in  accepting  a  juror  challenged  will 
not  ordinarily  be  reviewed  on  appeal:  State  v.  Saunders, 
14  Or.  300. 

Motion  in  arrest  of  judgment,  made  and  afterwards  waived 
in  the  lower  court,  cannot  be  considered  on  appeal: 
Freany  v.  Territory,  1  W.  T.  71. 

Alleged  error  must  be  presented  by  bill  of  exceptions,  or 
cannot  be  considered  on  appeal:  Hartigan  v.  Territory, 
1  W.  T.  447. 

Bill  of  exceptions  must  show  whether  instructions  were 
pertinent  before  error  in  giving  or  refusing  them  will  be 
considered:  Yelra  Jim  v.  Territory,  1  W.  T.  G3. 

Instructions  must  have  been  excepted  to  at  the  time  when 
given,  to  be  considered  on  appeal:  Smith  v.  United 
States,  1  W.  T.  262. 

It  is  not  necessary  that  the  journal  entries  in  a  criminal 
case  show  affirmatively  that  a  copy  of  the  indictment 
was  served  on  the  defendant,  and  the  defendant  should 
take  advantage  of  any  such  irregularity  at  the  time, 
and  if  the  objection  is  overruled,  the  fact  should  be 
preserved  by  a  bill  of  exceptions:  Lytle  v.  Territory,  2 
W.  T.  435. 

Alleged  error  in  admitting  dying  declarations  cannot  be 
reviewed :  Hartigan  v.  Territory,  1  W.  T.  447. 

Only  final  orders,  judgments,  and  decrees  are  reviewable: 
Conway  v.  United  States,  2  W.  T.  336. 
Crops.     See    Executions    and    Proceedings    Supplemental; 

Landlord  and  Tenant;  Mesne  Profits. 
Cross-bills.     S^e  Equity. 
Cross-examination.     See  Witnesses. 
Cruelty.     See  Divorce. 
Curtesy. 

Curtesy  attaches  to  an  equitable  estate  in  the  wife:  Gil- 
more  V.  Gilmore,  7  Or.  374. 

It  is  no  fraud  on  creditors  for  a  husband  to  bar  his  cur- 
tesy by  joining  his  wife  in  a  deed  on  sale  of  her  land: 
Besser  v.  Joyce,  9  Or.  310. 
Custody  of  Children.     See  Divorce. 


192  Customs. 

Customs. 

Local  customs  must  be  alleged  and  proved;  court  does 
not  take  judicial  notice:   Lewis  v.  McClure,  8  Or.  273. 

No  evidence  in  this  case  to  establish  custom  of  delivery 
of  goods  at  the  port  of  Olympia:   Williams  v.  Steam- 
ship Columbia,  1  W.  T.  95. 
Damages.     See  Conversion;  Fraud  and  Deceit. 

When  in  action  on  contract  the  contract  furnishes  the 
measure  of  damages,  no  other  will  be  adopted:  Zach- 
ary  v.  Swanger,  1  Or.  92. 

Price  paid  is  the  measure  for  breach  of  warranty  of  title 
to  personalty:   Arthur  v.  Moss,  1  Or.  193. 

On  affirmance  of  judgment  on  error,  allowance  of  dam- 
ages under  the  statute  is  denied  when  it  is  uncertain 
whether  the  writ  of  error  was  taken  in  good  faith  or 
not:  Coffin  v.  Ilanner,  Jennings,  &  Co.,  1  Or.  236. 

In  suit  against  city  for  damages,  a  resident  and  tax-payer 
in  city  is  not  competent  juror:  Garrison  v.  Portland,  2 
Or.  123;  Portland  v.  Kamm,  5  Or.  362. 

Jury  instructed  that  plaintiff  was  entitled  to  damages 
for  his  whole  injury  or  nothing:  Heath  v.  Glisan,  3  Or. 
64. 

Loss  of  time,  money  expended  or  debts  incurred,  and 
bodily  pain,  the  elements  of  damage  for  personal  inju- 
ries: Oliver  v.  N.  P.  T.  Co.,  3  Or.  84. 

The  object  of  damages  for  personal  injury  is  compensa- 
tion: Id. 

Exemplary  damages  denied:  Id. 

Damages  for  breach  of  covenants,  in  deed;  measure,  and 
recovery:  Stark  v.  Olney,  3  Or.  88;  Arrigoni  v.  John- 
son, 6  Or.  167. 

For  building  railroad  through  land,  and  appropriating 
land:  Oregon  Central  R.  R.  Co.  v.  Wait,  3  Or.  91;  Ore- 
gon etc.  R.  R.  Co.  V.  Barlow,  3  Or.  311. 

For  building  canal,  same:  Willamette  Falls  L.  &  C.  Co. 
V.  Kelly,  3  Or.  99. 

Jury  instructed  not  to  compromise  contrary  to  convictions 
of  truth:   Boydston  v.  Giltner,  3  Or.  118. 

Release  of  doubtful  claim  is  suflicient  consideration  for 
release  of  claim  for  damages:  Williams  v.  Poppleton,  3 
Or.  139. 

Damages  for  surgical  malpractice:  Heath  v.  Glisan,  3  Or. 


Damages.  193 

Damages  (continued). 

64;  Boydston  v.  Giltner,  3  Or.  118;  Williams  v.  Popple- 
ton,  3  Or.  139. 

Wliere  there  was  some  evidence  to  show  amount  of  dam- 
ages found,  new  trial  denied:  Williams  v.  Popplcton,  3 
Or.  139. 

In  slander,  plea  of  truth  as  defense,  if  not  proved,  is  an 
aggravation  of  damages:  Shartle  v.  Hutchinson,  3  Or. 
337. 

Special  damages  for  loss  of  prospective  earnings,  insuffi- 
cient pleading:  Brown  v.  Moore,  3  Or.  435. 

Damages  and  compensation  under  ditch  law  of  1868  (c.  39, 
tit.  1,  Hill's  A.  L.):  Seely  v.  Sebastian,  4  Or.  25. 

Proof  of  damages  where  judgment  in  default  is  rendered 
in  action  for  breach  of  contract,  is  unnecessary:  White 
V.  Northwest  Stage  Co.,  5  Or.  99. 

Damages  for  breach  of  contract,  where  the  breach  is  total, 
may  be  given  for  the  future  as  well  as  the  past,  though 
the  time  for  full  performance  has  not  elapsed:  Tippin 
V.  Ward,  5  Or.  450. 

Damages  and  benefits  in  an  action  for  opening  a  street; 
evidence  and  instructions:  Portland  v.  Kamm,  5  Or. 
362;  Portland  v.  Lee  Sam,  7  Or.  397;  Portland  v.  Kamm, 
10  Or.  383. 

Damages  and  benefits  must  be  assessed  separately  in 
action  reviewing  proceedings  to  lay  out  a  street:  Port- 
land V.  Kamm,  5  Or.  362. 

Essential  allegations  in  an  action  for  damages  for  false  rep- 
resentations: Rolfes  V.  Russel,  5  Or.  400. 

Price  paid  by  vendee  for  an  outstanding  paramount  title 
is  the  measure  of  damages  for  breach  of  covenant  of 
warranty:  Arrigoni  v.  Johnson,  6  Or.  167. 

Measure  of  damages  for  establishing  a  road  over  private 
property:  Terwilliger  v.  Multnomah  Co.,  6  Or.  295;  Put- 
nam V. 'Douglas  Co.,  6  Or.  328. 

Measure  of  damages  for  overflowing  plaintiff's  land  by 
erecting  a  dam:  Marsh  v.  Trullinger,  6  Or.  356. 

May  be  sued  for  by  person  specially  injured  by  obstruct- 
ing highway  with  toll-gate :  Milarkey  v.  Foster,  6  Or.  378. 

What  damages  are  recoverable  by  mail  carrier  for  ne- 
glect of  company  under  its  grant  from  the  United  States 

On.  Dio.— 13 


194  Damages. 

Damages  (continued). 

to  properly  build  the  Dalles  Military  Road:  Schultz  v. 
Military  Road  Co.,  7  Or.  259. 

Where  the  contract  specifies  the  damages  to  be  paid,  all 
other  damages  are  excluded:  Lung  Louis  &  Co.  v. 
Brown,  7  Or.  326. 

Forfeiture  of  five  cents  per  cord  on  wood  contract  stipu- 
lated is  liquidated  damages:  Id. 

Subsequent  attachment  and  sale  by  the  same  person  may 
be  shown  in  mitigation  of  damages,  in  an  action  against 
him  for  seizing  the  goods  under  a  void  attachment: 
Morrison  v.  Crawford,  7  Or.  472. 

County  Court  has  power  to  assess  damages  for  taking  of 
road  material  by  supervisor  from  private  lands  for  re- 
pairs: Kendall  v.  Post,  8  Or.  141. 

The  statute  (sec.  29,  c.  50,  Mis.  Laws,  sec.  4093,  Hill's 
A.  L.)  providing  therefor  is  not  unconstitutional  for  not 
providing  trial  by  jury:  Id. 

Measure  of  damages  for  breach  of  warranty  of  engine  is  the 
damage  naturally  resulting:  Drake  v.  Sears,  8  Or.  209. 

Expense  in  putting  up  the  defective  engine  and  incurred 
by  its  failure  to  do  the  work,  recoverable:  Id. 

Profits  of  business  not  an  element  of  damage  unless  con- 
templated by  parties:  Id. 

Damages  for  failure  of  county  clerk  to  record  mortgage: 
Howe  V.  Taylor,  9  Or.  288. 

Refusal  to  allow  certain  evidence  to  reduce  damages;  held, 
an  immaterial  error  where  answer  admitted  damages  to 
the  extent  found  by  the  verdict:  Smith  v.  Cox,  9  Or.  475. 

Special  damages  for  conversion  not  having  been  alleged, 
evidence  or  instructions  relating  thereto  are  irrelevant 
and  erroneous:  Salmon  v.  Olds  and  King,  9  Or.  488. 

Profits  that  would  necessarily  have  followed  from  the  con- 
tract are  actual  damages  recoverable  when  completion 
of  the  contract  is  prevented,  and  need  not  be  pleaded 
specially:  Wisner  v.  Barber,  10  Or.  342. 

Exemplary  damages  may  be  recovered  in  action  for  as- 
sault and  battery  where  malice  is  shown:  lieneky  v. 
Smith,  10  Or.  349. 

Proof  of  social  and  pecuniary  circumstances  of  defendant 
admissible  in  such  cases:  Id. 

Damages  for  breach  of  building  contract  include  loss  of 


DAaiAQES.  195 

Damages  (continued). 

rents  and  cost  of  completion,  less  amount  payable  under 
the  contract,  and  the  value  of  materials  on  hand:  Sav- 
age V.  Glenn,  10  Or.  440. 

Exemplary  damages  for  an  act  of  servant,  though  willful 
and  malicious,  cannot  be  recovered  from  master  unless 
he  authorized  or  ratified  the  act,  or  unless  chargeable 
with  gross  carelessness  in  the  employment  or  retention 
of  such  servant:  Sullivan  v.  Oregon  R'y  &  N.  Co.,  12 
Or.  392. 

Exemplary  damages  are  recoverable  only  when  complaint 
alleges  malicious  or  wrongful  act  or  reckless  indiffer- 
ence: Id. 

Measure  for  breach  of  contract  to  buy  standing  timber 
suitable  for  piling  and  ties  is  difference  between  con- 
tract and  present  market  price:  Mackey  v.  Olssen,  12 
Or.  429. 

Right  of  way  ha\ang  been  given  to  the  purchaser  to  reach 
the  timber  purchased,  the  cost  of  building  a  road  is  not 
an  element  of  damage  for  breach  on  his  part:  Id. 

Partial  failure  of  consideration  may  be  set  up  as  a  de- 
fense to  an  action  on  a  bill  of  exchange,  and  the  defend- 
ant recoup  his  damages,  though  unliquidated :  Davis  v. 
Wait,  12  Or.  425. 

Prescriptive  right  to  raise  water  to  a  certain  stage  is  no 
defense  to  an  action  for  damages  for  raising  such  stream 
above  that  stage:  Tucker  v.  Flouring  Mills  Co.,  13  Or. 
28. 

Where  verdict  for  damages  is  excessive,  it  is  the  duty  of 
the  court  to  set  it  aside;  but  its  refusal  to  do  so  cannot 
be  reviewed  on  appeal:  Nelson  v.  Oregon  Railway  etc. 
Co.,  13  Or.  141. 

Except  wher^  appellant  has  abandoned  his  appeal,  dam- 
ages are  not  allowed  unless  the  appeal  clearly  appears 
to  have  been  for  delay:  Id. 

When  damages  are  claimed  in  an  action  of  replevin,  and 
plaintiff  recovers,  the  verdict  is  not  defective  that  fails 
to  find  upon  that  question:  Prescott  v.  Heilner,  13  Or. 
200. 

In  such  case  it  is  presumed  that  the  jury  concluded  that 
no  damages  were  sustained:  Id. 

31arket  value  is  the  measure  of  damages  for  destruction 


196  Damages. 

Damages  (continued). 

of  things  that  have  Buch  value:  Prettyman  v.  Railway 
etc.  Co.,  13  Or.  341. 

But  for  property  having  no  market  value,  for  which  recov- 
ery can  be  had,  a  different  means  of  valuation  must  be 
resorted  to:  Id.  y 

When  attorneys'  fees  are  recoverable  as  part  of  damagte 
in  an  action  on  an  injunction  bond:  Olds  v.  Gary,  13 
Or.  362. 

Claim  for  damages  against  a  city  for  injury  upon  defect- 
ive walk  is  not  such  a  claim  as  must  first  be  presented 
and  disallowed  by  the  city  council  before  suit:  Sheridan 
V.  Salem,  14  Or.  328. 

Municipal  corporation  is  by  statute  liable  for  damages  for 
injuries  received  by  reason  of  its  failure  to  keep  streets 
in  repair,  unless  specially  exempted  by  its  charter:  Id. 

In  such  action,  evidence  of  repairing  the  locu8  in,  quo,  by 
the  officers  of  the  city,  is  admissible  on  the  question 
whether  the  walk  was  a  common  thoroughfare  main- 
tained by  the  city:  Id. 

Measure  of  damages  in  action  under  statute  giving  female 
over  twenty-one  years  of  age  a  right  of  action  for  her 
own  seduction,  is  her  entire  loss,  pecuniary,  and  in  rep- 
utation and  character:  Breon  v.  Henkle,  14  Or.  494. 

Damages  in  such  case  are  not  recoverable  where  both  par- 
ties were  equally  guilty,  but  only  where  the  defendant 
employed  such  artifice  and  deceit  as  was  calculated  to 
and  did  mislead  a  virtuous  woman:  Id. 

Where  a  railroad  company  obtained  right  of  way  over  a 
tract  of  land  from  one,  by  mistake  supposing  him  the 
owner,  and  then  entered  and  built  its  road  over  the 
same,  the  improvements  so  erected  cannot  be  taken  into 
consideration  to  enhance  damages,  in  favor  of  the  de- 
fendant in  a  suit  afterwards  brought  against  the  true 
owner  for  condemnation:  O.  R.  &  N.  Co.  v.  Mosier,  14 
Or.  519. 

Rights  of  consignee  against  common  carrier  for  damages 
for  injuries  to  goods  injured  in  transit:  Williams  v. 
Steamship  Columbia,  1  W.  T.  95. 

If  sheriff  make  a  false  return,  the  party  injured  thereby 
has  his  action  against  the  sheriff  for  damages:  Wash- 
ington Mill  Co.  v.  Kinnear,  1  W.  T.  99. 


Damages.  197 

Damagres  (continued). 

The  right  to  damages  on  a  replevin  bond  stated:  Boyer  v. 
Fowler,  1  W.  T.  101;  Meigs  v.  Keach,  1  W.  T.  305. 

Withholding  dower  entitles  the  claimant  to  damages:' 
Ebey  v.  Ebey  and  Beam,  1  W.  T.  185. 

No  statutory  method  of  admeasuring  such  damages  be- 
ing prescribed,  that  adopted  by  the  lower  court  ap- 
proved: Id. 

In  an  action  for  malicious  prosecution  and  arrest,  plain- 
tiff cannot  be  asked  to  state  the  amount  of  damages  he 
sustained ;  it  is  for  the  witness  to  state  the  facts  and  for 
the  jury  to  estimate  the  damages:  Ferguson  v.  Tobey, 

1  W.  T.  275. 

In  mitigation  of  damages  claimed  for  continued  imprison- 
ment, it  may  be  shown  that  plaintiff  refused  to  be  lib- 
erated on  bail:  Id. 

Vendor  who  by  oral  contract  has  agreed  to  sell  land  to  a 
person,  the  agreement  being  so  far  consummated  that 
the  latter  is  entitled  to  specific  performance,  is  liable 
in  damages  if  he  subsequently  fraudulently  conveys  to 
another:  Willey  v.  Morrow,  1  W.  T,  474. 

The  measure  of  damages  in  such  case  is  the  value  of  the 
land  at  time  of  the  fraudulent  conveyance:  Id. 

Woman  injured  on  board  a  vessel  by  negligence  of  the 
officers  can  maintain  libel  in  rem  against  the  vessel  for 
her  damages:  Phelps  v.  City  of  Panama,  1  W.  T.  518. 

The  method  of  ascertaining  the  damages  in  such  case  set 
forth:   Id. 

Collision  between  vessels,  occasioned  by  fault  of  both,  the 
aggregate  of  damages  should  be  borne  equally  by  the 
vessels:  JNIbigs  and  Talbot  v.  Steamship  Northerner,  1 
W.  T.  78;  Puget  Sound  C.  Co.  v.  Taylor,  2  W.  T.  93. 

Action  for  damages  for  breach  of  contract  to  furnish  liquors 
to  be  sold  in  violationof  license  law  cannot  be  maintained 
by  unlicensed  liquor  dealer:  Bach,  Messe,  &  Co.  v.  Smith, 

2  W.  T.  145. 

In  action  by  tenant  against  landlord  for  damages  for  fail- 
ure to  rebuild  after  premises  are  destroyed  by  fire,  un- 
der lease  for  term  of  years  providing  that  tenant  is  to 
make  repairs,  damages  by  elements  excepted,  an  an- 
swer admitting  the  lease  admits  the  right  to  nominal 
damages  at  least:  Hadlan  v.  Ott,  2  W.  T.  165. 


198  Damages. 

Damages  (continued). 

On  motion  of  plaintiff  in  such  case  for  judgment  on  the 
pleadings,  the  court  properly  awarded  nominal  dam- 
ages: Id. 

On  failure  to  furnish  brick  under  contract,  the  measure  of 
damages  is  the  difference  between  contract  price  and 
price  necessarily  paid  by  the  plaintiff  for  brick  to  finish 
his  building:  Sweeney  v.  Jamieson,  2  "\V.  T.  254. 

Where  such  contractor  agreed  to  furnish  a  superior  qual- 
ity of  brick  for  ornamental  work  on  the  building,  and 
failed  to  do  so,  the  plaintifif  is  entitled  to  recover  for 
lessened  value  of  building  on  account  of  the  absence  of 
■such  superior  brick:  Id. 

But  if,  on  the  failure  of  the  contractor  to  furnish  such 
superior  brick,  plaintifT  made  no  effort  to  obtain  them 
elsewhere,  but  changed  his  plan  of  building,  he  is  not 
entitled  to  such  additional  damages:  Id. 

In  the  absence  of  statute,  the  liability  of  a  city  for  in- 
juries received  by  reason  of  failure  to  repair  streets  is  in 
dispute  in  different  states,  but  in  Washington  Territory, 
following  the  opinion  of  the  United  States  Supreme 
Court,  the  action  may  be  maintained:  Hutchinson  v. 
Olympia,  2  W.  T.  314. 

Vendor  of  lots  is  liable  to  damages  for  deceit  for  fraudu- 
lently conveying  lots  of  little  value  to  purchaser  after 
pointing  out  to  the  latter  other  more  valuable  lots,  and 
inducing  him  to  believe  them  the  lots  to  be  sold:  Phin- 
ncy  V.  Hubbard,  2  W.  T.  369. 

Measure,  in  sucli  case,  is  the  difference  in  value  between 
the  property  purported  to  be  sold  and  that  actually 
sold:  Id. 
Dams.     See  ^lills;  Water  and  Watercourses. 

Breakwater  and  dam  are  part  of  mill,  so  that  a  mechanic's 
lien  attaches  to  mill  for  work  thereon:  Willamette  Falls 
etc.  Co.  V.  Remick,  1  Or.  1G9. 

Right  to  use  water  implies  right  to  dam  and  reasonably 
detain  the  water,  but  not  to  divert  it:  Oregon  Iron  Co. 
V.  Trullenger,  3  Or.  1. 

In  action  for  damages  for  overflowing  land  by  erecting  a 
dam,  the  elements  for  which  damages  are  recoverable: 
Marsh  v.  Trullenger,  G  Or.  356. 

Agreement  construed  to  permit  the  raising  of  a  dam  where 


Dedication.  199 

Dams  (continued). 

necessary  to  the  enjoyment  of  mill  privilege:  Brugger 
V.  Butler,  6  Or.  459. 
Injunction  against  overflow  caused  by  dam  not  granted 
where  plaintifl's  right  was  doubtful:  Tongue  v.  Gaston, 
10  Or.  328. 
Injunction  will  be  allowed  against  owner  of  overflowed 
■  land   to  restrain   drainage   thereof,  when  overflow   is 
caused  by  dam  of  a  mill-owner  who  has  no  right  to 
overflow  the  lands  by  grant,  license,  or   prescription: 
Wattier  v.  Miller,  11  Or.  329. 
Covenant  in  a  deed  for  division  of  water,  and  to  repair 
and  maintain  certain  dams,  construed:    Salem  Co.  v. 
Salem  F.  M.  Co.,  12  Or.  374. 
Injunction  refused,  to  prevent  one,  jointly  owning  with 
another,  rights  to  a  stream,  from  building  dam,  but  suit 
to  compel  equal  division  of  water  may  be  maintained: 
Id. 
Days  of  Grace.     See  Bills  and  Notes. 

Debtor  and  Creditor.     See  Assignment  for  Benefit  of  Cred- 
itors; Bankruptcy;  Composition;  Insolvency. 
Deceased  Persons,  Estates  of.     See  Administration;  Ad- 
ministrators and  Executors. 
Deceit.     See  Damages;  Fraud  and  Deceit. 
Declarations.     See  Evidence. 

Decree.    Appeal  and  Error;  Equity;  Judgments  and  Decrees. 
Dedication. 

No   particular  time  necessary  to  establish:   Parrish   v. 

Stephens,  1  Or.  59. 
User  by  the  public  with  assent  of  owner  for  such  time 
that  ajLJnterruption  would  be  an  injury,  sufiicient  to 
establish:  Id. 
Private  buildings  erected  on  public  ground,  the  legal  title 
to  which  is  in  the  public  by  dedication,  may  be  removed 
by  the  public,  but  are  not  public  property:  Id. 
Conditional  dedication  docs  not  take  effect  or  bind  after- 

ajcquired  land  if  condition  fails:  Id. 
Dedication  by  occupant  prior  to  Donation  Law  does  not 
bind  subsequent  occupant:  Lownsdalc  v.  Portland,  1 
Or.  397. 
Exhibition  and  publishing  of  plat  with  spaces  marked 
as  streets  and  public  squares  is  evidence  of:  Id. 


200  Dedication. 

Dedication  (continued). 

Proof  of,  by  casual  conversations  and  remarks  of  pro- 
prietor, to  be  closely  scrutinized:  Id. 

Public  dedication  not  presumed,  must  be  shown  by  clear 
proof:  Id. 

Adoption  of  map  by  city,  not  including  as  a  street  the 
strip  in  controversy,  binds  the  city:  Id. 

Map  relied  on  to  prove  dedication  must  be  shown  to  have 
been  made  or  assented  to  by  donors:  Leland  v.  Port- 
land, 2  Or.  46. 

To  be  binding  on  proprietors  of  town  site  of  Portland, 
dedication  must  have  been  made  since  September  27, 
1850:  Id. 

Laying  off  streets  and  blocks,  and  selling  blocks  abutting 
on  street,  is  dedication  of  street:  Portland  v.  Whittle, 
3  Or.  126. 

Dedicator  and  his  successors  in  interest  are  bound:  Id. 

Subsequent  assent  of  dedicator  cannot  change  street  to 
public  square:  Id. 

May  be  by  parol;  must  be  acts  evincing  clear  intention: 
Carter  and  Mason  v.  Portland,  4  Or.  339. 

What  acts  sufficient  to  constitute  parol  dedication:  Id. 

Formal  acceptance  by  city  not  necessary;  where  the  dedi- 
cation is  irrevocable,  it  need  not  be  followed  by  imme- 
diate and  continued  user  by  the  city:  Id. 

Nothing  in  the  Oregon  road  laws  limits  or  alters  the  right 
to  dedicate  roads:  Douglas  County  Road  Co.  v.  Abra- 
ham, 5  Or.  318. 

Continued  and  uninterrupted  user  for  greater  period  than 
the  statute  of  limitations  is  evidence  of  the  existence 
of  the  highway:  Id.  But  see  Smith  v.  Gardner,  12  Or. 
221. 

Slight  change  in  the  thread  of  the  road  will  not  defeat 
riglits  of  the  public:  Id. 

Public  levee,  duly  dedicated,  cannot  be  taken  by  railroad 
company  for  depots  without  consent:  Oregon  R'y  Co. 
V.  Portland,  9  Or.  231. 

Owner  of  a  tract  conveyed  by  metes  and  bounds  acquires 
no  title  to  the  soil  of  a  street  subsequently  dedicated 
by  his  grantor,  adjoining  his  tract:  Knott  Bros.  v.  Jef- 
ferson St.  Ferry  Co.,  9  Or.  530. 


Dedication.  201 

Dedication  (continued). 

Owner  may  make  qualified  dedication  of  road;  may  re- 
serve right  to  keep  a  gate  across:  Smith  v.  Gardner,  12 
Or.  221. 

Permissive  use  of  a  way  by  portions  of  the  community  is 
a  license,  not  a  dedication:  Id. 

User  and  improvement  for  statutory  period  by  city  of  a 
"   road  witliiu  the  city  limits  is  not  sufficient  proof  of 
acquiescence  of  owners  to  the  use  thereof  as  a  street: 
Heiple  v.  East  Portland,  13  Or.  97. 

Facts  examined,  and  held  not  to  establish  an  intent  to 
dedicate  such  road  as  a  street:  Id. 

Grant  or  license  to  railroad  company  by  legislative  act 
to  use  a  previously  dedicated  public  levee  in  a  city  for 
terminal  depots  and  docks,  with  reasonable  limitations 
providing  for  the  protection  of  the  rights  of  the  public, 
is  not  invalid  as  diverting  the  use  of  the  property  as 
dedicated,  and  is  in  aid  of  such  use:  P.  &  W.  V.  R.  R. 
Co.  V.  Portland,  14  Or.  88. 

The  power  of  the  legislature  over  property  dedicated  to 
public  use  is  not  absolute;  it  may  regulate  the  use  of 
the  property  or  promote  its  improvement,  but  not  divert 
the  use  from  that  for  which  dedicated:  Id. 

Upon  such  diversion,  any  person  interested  would  be 
authorized  to  institute  proper  proceedings  to  enjoin  it: 
Id. 

Upon  vacation  of  an  alley,  once  dedicated  to  the  pub- 
lic, by  municipal  corporation,  the  fee  to  the  soil  vests  in 
equal  proportions  in  abutting  lot-owners:  Burmeister 
V.  Howard,  1  W.  T.  207. 

But  if  a  di^rent  disposition  of  such  vacated  alley  be  made 
by  ordinance  upon  petition  of  all  the  abutting  owners, 
they  are  estopped  thereby  from  setting  up  any  claim  in 
contravention  to  such  ordinance:   Id. 

Recorded  plat  of  town,  clearly  defining  streets  thereon, 
will  not  operate  as  dedication  of  a  strip  inclosed  by 
lines  on  such  plat,  and  marked  "C,"  thougli  extending 
from  one  street  to  another,  and  having  lots  abutting  on 
it:  Robinson  v.  Coffin,  2  W.  T.  251. 

Such  inclosure  of  the  space  indicates  an  intention  to  with- 
hold the  land  from  public  use:  Id. 


202  Deeds 

Deeds.  See  Acknowledgments;  Boundaries;  Contracts;  Es- 
toppel; Mistake  and  Accident;  Mortgages;  Reformation; 
Specific  Performance. 

1.  The  Contract  to  Convey. 

2.  Execution  and  Delivery. 

3.  Consideration. 

4.  Description  of  Premises. 

5.  Covenants. 

6.  Interpretation  and  Construction'. 

7.  Recording. 

8.  Validity  and  Effect. 
1.   The  Contract  to  Convey. 

Agreement  to  convey  free  of  encumbrances;  grantor  must 
record  releases  of  mortgages  or  oth6r  liens  on  the  prop- 
erty before  he  can  tender  deed:  Knighton  v.  Smith,  1  Or. 
276. 

Vendor  must  tender  deed,  and  vendee  must  tender  price 
and  make  demand,  before  action  lies  by  either:  Guthrie 
V.  Thompson,  1  Or.  353. 

Mere  agreement  to  sell  does  not  give  license  to  purchaser 
to  enter:  Lee  v.  Summers,  2  Or.  260. 

Agreement  to  make  quitclaim  deed,  when  the  grantor 
obtains  title  from  a  certain  source,  does  not  estop  him 
from  purchasing  and  holding  an  outstanding  title: 
Shively  v.  Welch,  2  Or.  288. 

Time  is  not  of  the  essence  of  the  contract,  uriless  the  lan- 
guage clearly  indicates  such  to  have  been  the  intention 
of  the  parties:  Knott  v.  Stephens,  5  Or.  235;  Snider  v. 
Lehnherr,  5  Or.  885. 

When  title  is  defective,  and  an  incumbrance  is  on  the 
land,  offer  of  a  warranty  deed  by  the  vendor  is  not  a 
performance  of  a  contract  to  convey  by  good  and  suffi- 
cient warranty  deed:  Collins  v.  Delashmutt,  6  Or.  51. 

When  title  is  derived  through  unrecorded  deed,  it  is  de- 
fective, and  Vendee  need  not  accept:  Id. 

On  breach  by  one  party,  the  other  need  not  specify  in  his 
notice  of  rescission  the  breaches  relied  on:  Id. 

Party  in  possession  under  imperfect  deed  may  be  granted 
specific  performance,  and  in  such  case  the  deed  is  con- 
strued a  contract  to  convey:  Hill  v.  Cooper,  6  Or.  181. 

Agreement  to  convey  land,  mill,  etc.,  held  to  permit  the 
raising  of  the  dam  where  necessary  to  the  user  of  the 
privilege  granted:  Brugger  v.  Butler,  6  Or.  459. 


Deeds.  203 

Deeds  (continued). 

Possession  under  an  agreement  to  convey,  the  descrip- 
tion being  defective,  held  sufficient  identification  in  a 
suit  for  specific  performance:  Richards  v.  Snider,  11 
Or.  197. 

Covenants  to  purchase  certain  property  on  or  before  five 
years,  and  that  on  payment  the  other  party  will  make 
good  and  sufficient  deed,  are  dependent  covenants,  and 
require  performances  or  tender  by  either  party  before 
suit:  Powell  v.  D.  S.  &  G.  R.  R.  R.  Co.,  12  Or.  488; 
S.  C,  14  Or.  356. 

Bond  for  a  deed  operates  to  convey  equitable  title  to  ven- 
dee, and  the  vendor  holds  the  legal  title  as  mere  secu- 
rity for  the  pavmeut  of  his  debt:  Burkhart  v.  Howard, 
14  Or.  39. 

Such  vendee  mortgaging  the  land  conveys  thereby  to  his 
mortgagee  his  security  to  the  extent  of  the  mortgage: 
Id. 

In  such  case,  the  assignee  after  maturity  of  the  vendee's 
notes  acquires  no  more  right  than  his  assignor,  and 
this,  notwithstanding  the  mortgage  was  not  recorded 
until  afterwards:  Id. 

Where  the  terms  of  the  contract  require  no  more  than 
that  the  vendor  convey  all  the  title  he  has,  the  vendee 
can  insist  on  no  more:  Thompson  v.  Hawley,  14  Or. 
199. 

Contract  for  conveyance  of  land  upon  payment  of  certain 
sums  gives  vendee  option  on  default  of  vendee  to  ten- 
der deed  and  sue  for  the  money,  or  to  foreclose  the 
rights  of  the  vendee  under  the  contract:  Wood  v.  Mas- 
tick,  2AV.  T.  64. 
2.   Execution  and  Delivery. 

Deed  of  corporation  must  be  sealed  with  corporate  seal, 
and  purport  to  be  act  of  the  corporation:  Eagle  Woolen 
Mills  Co.  V.  ]\Ionteith,  2  Or.  277. 

But  seal  need  be  in  no  particular  form,  and  words  stating 
that  the  corporation   afiixed   it,   not  indispensable:  Id. 

Deed  executed  by  agent  must  be  executed  in  name  of 
principal:  Id. 

Sheriff  in  office  when  deed  is  due  may  execute  the  same 
after  time  for  redemption:  ^loore  v.  Willamette  T.  & 
L.  Co.,  7  Or.  359. 

Deed  of  a  corporation,  sealed  with  its  seal  and  subscribed 


204  Deeds. 

Deeds  (continued). 

by  its  president  and  secretary,  declaring  that  they  sub- 
scribe it  for  the  corporation,  will  convey  title:  Id. 

Certificate  of  proof  of  execution  of  unacknowledged  deed 
must  show  that  the  witnesses  were  sworn  and  state  the 
facts:  Mclntyre  v.  Kamm,  12  Or.  253. 

Delivery  is  essential,  whether  consideration  be  good  or 
valuable:  Fain  v.  Smith,  14  Or.  82. 

Delivery  defined;  the  intention  is  the  controlling  element: 
Id. 

After  execution  and  acknowledgment,  words  or  circum- 
stances decisive  of  the  intention  of  the  grantor  to  con- 
summate and  part  with  deed  constitute  a  delivery:  Id. 

Evidence  considered  and  held  to  establish  the  execution 
and  delivery  of  deed  to  the  plaintiff:  Teller  v.  Brower, 
14  Or.  405. 
3.  Consideration. 

Parol  proof  admissible  to  prove  actual  consideration  dif- 
fering from  that  in  deed:  Brown  v.  Cahalin,  3  Or.  45. 

That  expressed  is  prima  facie  the  actual  price,  but  pre- 
sumption is  disputable:  Stark  v.  Olney,  3  Or.  88. 

Conveyance  in  consideration  of  marriage  is  not  a  voluntary 
conveyance:  Bonser  v.  Miller,  5  Or.  110. 

Payment  of  an  existing  mortgage  to  which  the  deed  is 
subject,  and  which  is  recited  in  the  deed,  is  a  valuable 
consideration  as  against  creditors:  Miles  v.  Miles,  6  Or. 
266. 

Contract  to  support  grantor,  in  consideration  of  convey- 
ance, will  be  enforced  in  equity,  and  the  land  charged, 
though  a  money  consideration  is  expressed  in  the  deed: 
Watson  V.  Smith,  7  Or.  448. 

Deed  of  bargain  and  sale  must  be  supported  by  a  con- 
sideration which  should  be  expressed  therein:  Lambert 
V.  Smith,  9  Or.  185. 

If  not  expressed  in  the  deed,  it  may  be  averred  and 
proved,  but  it  must  exist:  Id. 

The  seal  does  not  remove  the  necessity  to  prove  the  exist- 
ence of  the  consideration:  Id. 

Deed  made  between  parties  to  divorce  suit,  in  considera- 
tion of  not  defending,  is  against  public  policy,  and 
mistake  therein  will  not  be  corrected  in  equity:  Phillips 
y.  Thorp,  10  Or.  494. 


Deeds.  205 

Deeds  (continued). 
4.   Description  of  Premises. 

Ascertained  boundaries  and  monuments  control  measure- 
ments, either  of  lines,  surfaces,  or  angles:  Lewis  v. 
Lewis,  4  Or.  177. 

Locality  at  which  a  lost  stake  was  set  may  be  ascertained 
in  law  as  well  as  in  equity:  Id. 

Clerical  error  in  description  will  not  vitiate,  where  intent 
can  be  seen  from  the  deed:  Mathews  v.  Eddy,  4  Or.  225. 

When  parol  evidence  is  admissible  to  aid  description: 
Raymond  v.  Coffey,  5  Or.  132. 

Effect  should  be  given  to  the  intelligible  portions,  and  the 
repugnant  rejected:  Id.;  Board  S.  L.  Com.  v.  Wiley 
and  Davis,  10  Or.  86. 

Metes  and  bounds  control  quantity,  though  not  correctly 
stated  in  the  deed:  Id. 

Description  not  so  vague  but  that  a  surveyor  might  find 
the  land  with  the  deed  does  not  render  deed  void: 
Willamette  C.  &  L.  Co.  v.  Gordon,  6  Or.  175. 

Lands  omitted  by  mistake  in  the  description  ma}^  be  in- 
serted by  court  of  equity:  Ramsey  v.  Loomis,  6  Or.  367. 

Parol  evidence  is  admisvsible  to  locate  stake  mentioned  as 
starting-point  in  description  otherwise  definite:  Boch- 
reinger  v.  Creighton,  10  Or.  42. 

Where  the  deed  correctly  described  the  premises,  but  added 
the  statement  that  the  tract  lay  in  a  certain  township, 
whereas  it  lay  partly  in  the  adjoining  township  also, 
the  latter  part  of  the  description  may  be  rejected: 
Board  S.  L.  Com.  v.  Wiley  and  Davis,  lO'  Or.  86. 

"Lot  8,  section  19,  4  north,  35  east."  sufficient  description 
whea-contract  is  accompanied  by  possession:  Richards 
V.  Snider,  11  Or.  197. 

Tax  deed,  though  the  description  of  premises  is  defective, 
may  be  given  in  evidence  by  a  defendant  in  ejectment 
to  prove  color  of  title  in  himself:  Smith  v.  Shattuck,  12 
Or.  362. 

"Minter's  Donation,  township  1  south,  range  2  west,  320 
acres,"  is  sufiicient  description  in  tax  deed,  if  there  is 
in  such  township  a  donation  claim  answering  the  de- 
scription: Minter  v.  Durham,  13  Or.  470. 

Lines  and  corners,  mentioned  in  deeds  made  subsequent 
to  a   city   ordinance  fixing  the   lines  and  corners   of 


206  Deeds. 

Deeds  (continued). 

abutting  alley,  are  governed  by  the  ordinance,  and  are 
not  considered  the  lines  and  corners  as  they  formerly 
existed:  Burmeister  v.    Howard,  1  W.  T.  207. 
5.   Covenants. 

Where  plaintiff  was  ousted,  defendant  not  having  had 
notice  of  the  action,  plaintiff  must  prove  he  was  ousted 
by  paramount  title,  when  he  sues  for  breach  of  war- 
ranty: Stark  V.  Olney,  3  Or.  88. 

Damages  for  breach:  Id. 

One  bound  by  general  covenant  of  warranty  cannot  set 
up  after-acquired  title:  Taggart  v.  Risley,  3  Or.  306; 
S.  C,  4  Or.  235;  Dolph  v.  Barney,  5  Or.  192;  Wilson 
V.  McEwan,  7  Or.  87. 

General  covenant  of  warranty  of  premises  cannot  be  ex- 
plained to  have  been  intended  to  apply  to  part  of 
premises  only:  Id. 

Construction  of  covenant  to  party  and  his  heirs,  held  not 
to  apply  to  his  assigns,  or  to  amount  to  a  covenant  for 
quiet  enjoyment:  Moflitt  v.  Coffin,  3  Or.  426. 

Express  covenant  cannot  be  construed  so  as  to  extend  its 
obligations  by  implication:  Id.;  Failing  v.  Osborne,  3 
Or.  498. 

So  where  a  covenant  was  held  to  amount  to  general  war- 
ranty, ouster  necessary  before  action  for  breach:  Id. 

Grantor  and  his  privies  are  estopped  from  denying  title 
to  which  they  have  given  general  warranty:  Wilson  v. 
McEwan,  7  Or.  87. 

Covenant  for  further  assurance  of  title  on  receiving  patent 
from  United  States  construed:  Baker  v.  Woodward,  12 
Or.  3. 

Covenant  in  a  deed,  dividing  water  and  requiring  building 
and  repairing  of  dams,  construed:  City  of  Salem  Co.  v. 
Salem  F.  M.  Co.,  12  Or.  374. 

Covenant  following  upon  and  connected  with  the  haben- 
dum et  tenendum  clauses  in  the  words,  "and  the  said  B, 
his  heirs  and  assigns,  will  warrant  and  by  these  pres- 
ents ever  defend,"  is  sufficient  to  pass  after-acquired 
title:  Mann  v.  Young,  1  W.  T.  454. 

Action  for  breach  of  covenant  for  quiet  enjoyment  will  not 
lie  until  there  has  been  some  hostile  assertion  of  a  better 
title:  Morgan  v.  Henderson,  2  W.  T.  367. 


Deeds.  207 

Deeds  (continued), 

6.   Interpretation  and  Construction. 

Deed  reciting  in  the  body  thereof  A  as  maker,  but  signed 

by  B,  is  void:  Brauns  v.  Stearns,  1  Or.  3G7. 
Parol  evidence  is  not  admissible  to  aid  in  the  interpreta- 
tion of  such  deed:  Id. 
Construction  of  conveyance  of  water-power,  etc.,  with  right 
•    to  enjoy  flowage  unobstructed:  Oregon  Iron  Co.  v.  Trul- 

lenger,'2  Or.  311. 
Same,  right  to  "  all  the  water  which  naturally  flows  below 

said  mill ":  Oregon  Iron  Co.  v.  Trullenger,  3  Or.  1. 
All  parts  of  deeds  should   be  considered  together  with 

surrounding  circumstances  to  ascertain  the  intention 

of  the  parties:  Id. 
Meaning  must  be  given  to  each  term  if  possible:  Chapman 

V.  Wilbur,  3  Or.  326. 
Construction  of  deed  and  confirmatory  trust  deed  to  land 

for  the  purpose  of  erecting  an  academy  thereon:  Id. 
Whether  the  confirmatory  deed  alters  the  trust,  and  how 

far  ratified:  Id. 
A  deed  must  be  taken  by  its  "four  corners"  to  interpret 

it,  and  the  intention  when  discovered  carried  out:  Bohl- 

man  v.  Coffin  and  Carter,  4  Or.  313. 
Party  of  the  second  part  construed  to  mean  party  of  the 

first  part:  Id. 
Intelligible  and  consistent  portions  should  be  retained,  and 

the  repugnant  and  inconsistent  rejected:  Raymond  v. 

Coffey,  5  Or.  132;  Board  School  Land  Com'rs  v.  Wiley 

and  Davis,  10  Or.  86. 
Conveyance  of  land,  except  strip  reserved  for  road,  held 

to  p^s  the  fee  in  the  strip,  subject  to  the  right  of  way 

for  road:  Abraham  v.  Abbott,  8  Or.  53. 
Two  conveyances  at  same  time,  between  the  same  parties, 

concerning  the  same  subject-matter,  should  be  construed 

together:  Kruse  v.  Prindle,  8  Or.  158. 
Reservation  in  deed  of  lot  bounded  by  tide-water,  of  all 

privileges  around  said  lot,  construed  to  include  wharf- 

ing  rights;  Parker  v.  Rogers,  8  Or.  183. 
Deed  purporting  to  pass  the  right,  title,  and  interest  of 

grantor,  but  with  covenants  of  general  warranty  of  the 

premises,  held  to  operate  as  an  estoppel  as  to  the  whole 

of  the  property  conveyed:  Bay  ley  v.  McCoy,  8  Or.  259. 


208  Deeds. 

Deeds  (continued). 

Grant  of  a  right  of  way  to  enter,  build,  and  repair  water- 
ditches,  etc.,  on  grantor's  land,  construed:  Spear  v. 
Cook,  8  Or.  380. 

The  word  "  convey,"  in  a  deed,  is  equivalent  to  the  word 
"grant":  Lambert  v.  Smith,  9  Or.  185. 

Words  of  quitclaim  of  dower  by  wife  in  husband's  deed, 
held  not  to  estop  her  from  claiming  an  existing  or  after- 
acquired  fee-simple  interest:  Burston  v.  Jackson,  9  Or. 
275. 

Deed  of  a  mill  and  mill-site,  by  metes  and  bounds,  with 
the  appurtenances,  held  to  include  the  easement  of  the 
right  of  overflowing  adjoining  lands:  Jackson  v.  Trul- 
linger,  9  Or.  393. 

Vendor  having  no  legal  title,  but  a  mere  equitable  right 
to  take  water  off  the  land  of  another,  his  quitclaim  deed 
thereto  is  an  executory  contract,  and  not  an  executed 
conveyance:  Glasford  and  Shield  v.  Baker  and  Cain,  1 
W.  T.  224. 
7.   Recording. 

Unrecorded  deed  is  good  between  the  parties:  Moore  v. 
Thomas,  1  Or.  201;  Manaudas  v.  Mann,  14  Or.  450. 

In  absence  of  fraud,  recorded  conveyance  has  priority  over 
unrecorded  deed:  Id. 

Unacknowledged  conveyance  recorded  is  no  notice  to  sub- 
sequent mortgagees:  Id. 

Mechanics  who  claim  liens  are  estopped  to  deny  notice  of 
mortgage  recited  in  owner's  recorded  deed:  Holmes  v. 
Ferguson,  1  Or.  220. 

Unrecorded  deed  carries  legal  title  as  against  all  persons 
having  notice:  Musgrove  v.  Bonser,  5  Or.  313. 

Recorded  deed  passes  no  title  when  taken  with  notice  of 
prior  unrecorded  deed:  Id. 

Deed  not  entitled  to  record,  recorded  may  operate  as 
actual  notice:  Baker  v.  Woodward,  12  Or.  3. 

Index  is  no  part  of  the  record;  deed  recorded  and  not  in- 
dexed operates  as  notice:  Board  of  Com.  v.  Babcock,  5 
Or.  472. 

Wliere  title  is  derived  through  unrecorded  deed  not  ex- 
hibited to  the  purchaser,  it  is  defective,  and  he  need  not 
accept:  Collins  v.  Delashmutt,  '^»  Or.  51. 

Deeds  and  powers  of  attorney,  executed  and  delivered  in 


Deeds.  209 

Deeds  (continued). 

1845  and  1846,  and  not  acknowledged  or  proved  during 
the  time  of  the  provisional  government,  may  be  proved 
under  the  general  laws  to  entitle  them  to  record:  Wil- 
son v.  McEwan,  7  Or.  87. 

Attaching  creditor  stands  in  all  respects  as  bona  fide 
purchaser,  as  to  notice  of  unrecorded  deed:  Boehreinger 
V.  Creighton,  10  Or.  42. 

Judgment  lien,  not  taken  bona  fide  ^nthout  notice,  does 
not  prevail  over  deed  unrecorded:  Baker  v.  Woodward, 
12  Or.  3. 

Deed  not  entitled  to  record  does  not  take  priority  over 
mortgage  entitled  to  record,  made  and  recorded  at  same 
time  without  notice:  Fleschner  v.  Sumpter,  12  Or.  161. 

Mortgage  stands  on  same  footing  as  deed  with  respect  to 
recording:   Id. 

Conveyance  executed  and  acknowledged  out  of  the  state 
must  be  accompanied  by  certificate  that  it  was  executed 
and  acknowledged  according  to  the  laws  where  done,  to 
be  recorded:  Id. 

Where  neither  of  two  conveyances  is  recorded  within  five 
days  from  the  time  of  its  execution,  the  first  recorded 
takes  precedence:  Id. 

In  making  proof  of  an  unacknowledged  deed  for  purpose 
of  recording,  witness  must  be  sworn,  and  that  fact 
stated  in  the  affidavit:  Mclntyre  v.  Kamm,  12  Or.  253. 

Semble,  that  a  deed  absolute  in  form,  intended  as  a  mort- 
gage, could  not  be  recorded  as  a  mortgage;  if  re- 
corded as  a  deed  it  operates  as  notice  of  grantee's 
claim:  Haseltine  v.  Espey,  13  Or.  301. 

One  holdmg  unrecorded  deed  is  not  bound  by  decree 
quieting  title  in  a  suit  subsequently  brought  against 
his  grantor,  where  the  adverse  party  had  full  notice, 
and  the  deed  was  recorded  during  the  pendency  of  the 
suit:  Walker  v.  Goldsmith,  14  Or.  125. 

Unacknowledged  deed,  though  not  entitled  to  record, 
passes  title,  and  is  a  good  conveyance  except  as  against 
bona  fide  purchaser  for  value:  Manaudas  v.  Mann,  14 
Or.  450. 

Record  of  a  deed  showing  it  to  bear  a  certain  date  must 
yield  to  the  original  deed  showing  a  diflerent  date: 
Skellinger  v.  Smith,  1  W.  T.  369, 

Ob.  Dig.— U 


210  Deeds. 

Deeds  (continued). 

Best  evidence  of  a  deed  and  its  contents  before  and  after 
the  registration  laws  is  the  deed  itself,  the  execution 
and  delivery  having  been  first  duly  proved:  Id. 
8.   Validity  and  Effect. 

Deed  unacknowledged  and  unrecorded  good  between  the 
parties:  Moore  v.  Thomas,  1  Or.  201;  Manaudas  v. 
Mann,  14  Or.  450. 

Parties  are  bound  by  recitals  contained  in  a  deed:  Holmes 
V.  Ferguson,  1  Or.  220;  Graham  v.  Meek,  1  Or.  325. 

Deed  of  release,  without  covenants,  made  by  a  mere 
occupant,  does  not  bind  grantor's  after-acquired  title: 
Lownsdale  v.  Portland,  1  Or.  397. 

Quitclaim  deed  conveys  the  interest  of  grantor  only,  not 
the  land:  Farnum  v.  Loomis,  2  Or.  29;  Baker  v.  Wood- 
ward, 12  Or.  3. 

Such  deed  does  not  estop  grantee  from  showing  that  his 
grantor  had  no  estate  to  which  dower  could  attach:   Id. 

The  making  or  agreeing  to  make  a  quitclaim  deed  of  all 
interest  the  grantor  acquires  from  a  certain  source  does 
not  prevent  him  from  buying  from  another  source,  and 
holding  same  land:  Shively  v.  Welch,  2  Or.  288. 

Purchaser  of  part  of  an  estate  takes  subject  to  servitudes 
visibly  attached:  Oregon  Iron  Co.  v.  Trullenger,  3  Or.  1. 

Grantor  seeking  to  show  his  deed  voidable  has  no  stand- 
ing in  equity  while  retaining  purchase-money:  Kelly  v. 
People's  Transportation  Co.,  3  Or.  189. 

After-acquired  legal  title  in  grantor  inures  to  grantee 
when  the  deed  clearly  shows  that  it  was  meant  to  pass 
an  absolute  estate,  although  it  contains  no  warranty: 
Taggart  v.  Risley,  4  Or.  235. 

Deed  in  consideration  of  marriage  not  presumed  fraudu- 
lent, but  may  be  set  aside  for  fraud,  where  both  parties 
concurred  in  the  fraud:  Bonser  v.  Miller,  5  Or.  110. 

Quitclaim  deed  passes  all  the  estate  that  can  be  conveyed 
by  bargain  and  sale,  in  Oregon:  Dolph  v.  Barney,  5  Or. 
192. 

Deed  containing  covenant  of  warranty  operates  to  trans- 
mit any  after-acquired  estate  of  grantor:  Id. 

Sheriff's  deed  is  evidence  of  title,  and  recitals  are  prima 
facie  evidence:  Id., 


Deeds.  211 

Deeds  (continued). 

School  superintendent's  deed,  if  regular  on  its  face,  is 

prima  facie  evidence  of  his  power  to  convey:  Id. 
Deed  of  school   land   commissioners   conclusive  on  the 
state;  but  a  party  may  have  it  set  aside  for  fraud   and 
false  testimony  on  the  part  of  the  grantee  in  obtaining 
it:  Ilurst  v.  Ilawn,  5  Or.  275. 
Fraudulent  deed  by  husband  before  divorce,  and  after 
cause  of  suit  accrued  against  him,  may  be  set  aside  at 
the  suit  of  the  wife,  after  decree  of  divorce  is  granted 
to  her:  Barrett  v.  Barrett,  5  Or.  411. 
Deed  made  by  judicial  sale  in  county  court,  regular  on  its 
face,  based  upon  a  judgment  apparently  valid,  gives 
color  of  title:  Hatcher  v.  Briggs,  6  Or.  43. 
Deed  of  insane  person  is  void,  and  may  be  impeached 
when  offered  in  evidence  in  ejectment:    Farley  v.  Par- 
ker, 6  Or.  105. 
Deed  void  as  a  conveyance  may  be  admitted  in  evidence 
to  identify  land  described:    Willamette  Co.  v.  Gordon, 
6  Or.  175. 
Imperfect  deed  of  party  in  possession  may  be  construed 
as  a  contract  to  convey,  and  specific  performance  be 
granted:  Hill  v.  Cooper,  6  Or.  181. 
Parol  evidence  is  admissible  to  show  a  deed  absolute  on 
its  face  to  be  a  mortgage:    Hurford  v.  Harned,  6  Or. 
362;  Stephens  v.  Allen,  11  Or.  188;   Albany  and  San- 
tiam  W.  D.  Co.  v.  Crawford,  11  Or.  243;  Wilhelm  v. 
Woodcock,  11  Or.  518;   Miller  v.  Ansenig,  2  W.  T.  22. 
Deed  which  is  defective  in  the  description  of  the  premises 
may  be  used  as  evidence  to  prove  unequivocal  declara- 
tions^ontained  therein,  in  a  suit  to  reform  the  deed: 
Hamscy  v.  Loomis,  6  Or.  367. 
Deed  of  corporation  sealed  with  its  seal,  and  signed  by 
the  president  and  secretary,  declaring  it  is  executed  by 
them  for  the  corporation,  will  convey  title:   Moore  v. 
Willamette  T.  &  L.  Co.,  7  Or.  359. 
Assignment  for  benefit  of  creditors,  providing  for  sale  of 
property,  and  payment  of  proceeds  to  unsecured  cred- 
itors, prima /aric  valid;  fraud  is  not  presumed:  Kruse 
v.  Prindle,  8  Or.  158. 
Grant  of  a  right  of  way  for  a  mill-race  is  an  easement, 
and  the  right  to  use  water  of  streams  crossing  is  re- 


212  Deeds. 

Deeds  (continued). 

served  in  the  grantor  without  express  words:  Miller  v. 
Vaughn,  8  Or.  333. 

Deed,  void  as  a  bargain  and  sale  for  want  of  considera- 
tion expressed,  may  operate  as  a  grant  if  it  contain 
other  apt  words  of  conveyance:  Lambert  v.  Smith,  9  Or. 
185. 

Effect  of  deed  must  be  determined  by  the  court,  and  not 
left  to  the  jury:  Johnson  v.  Shively,  9  Or.  333. 

That  plaintiff  is  not  a  bona  fide  purchaser  because  he 
claims  under  a  quitclaim  deed  is  a  defense  in  equity, 
not  at  law:  Hass  v.  Sedlak,  9  Or.  462. 

Fee-tail  is  abolished  in  Oregon;  estates  of  inheritance 
are  subject  to  general  power  of  alienation  by  deed: 
Rowland  v.  Warren,  10  Or.  129. 

Deed  of  assignee  in  bankruptcy  to  property  sold  on  fore- 
closure of  prior  mortgage  conveys  no  title:  De  Lash- 
mutt  V.  Sellwood,  10  Or.  319. 

Principles  and  evidence  upon  which  a  deed  absolute  on 
its  face  will  be  held  a  mortgage:  Stephens  v.  Allen,  11 
Or.  188;  Albany  and  Santiam  W.  D.  Co.  v.  Crawford, 
11  Or.  243;  Wilhelm  v.  Woodcock,  11  Or.  518. 

Purchaser  under  a  quitclaim  deed  is  not  a  bona  fide  pur- 
chaser without  notice:  Richards  v.  Snyder  and  Crews, 
11  Or.  501;  Baker  v.  Woodward,  12  Or.  3. 

Deed  by  one  claiming  under  Donation  Law,  before  receiv- 
ing patent,  with  covenant  of  further  assurance,  operates 
to  convey  equitable  title:  Bohlman  v.  CoiSin  and  Carter, 
4  Or.  313;  Baker  v.  Woodward,  12  Or.  3. 

Quitclaim  deed  conveys  only  the  right  of  the  grantor,  and 
grantee  having  notice  of  equitable  title  in  another  takes 
subject  thereto:  Baker  v.  Woodward,  12  Or.  3. 

Unrecorded  deed  prevails  over  subsequent  judgment  lien 
not  acquired  in  good  faith  without  notice:  Id. 

Quitclaim  deed  in  chain  of  title  is  notice  sufficient  to  put 
purchaser  on  inquiry:  Id. 

Quitclaim  deed  or  other  instrument  purporting  to  convey 
title  is  sufficient  to  constitute  color  of  title  as  founda- 
tion for  adverse  possession:  Swift  v.  Mulkey,  14  Or.  59. 

Quitclaim  deed,  by  vendor  having  no  legal  title  but  mere 
equitable  right  to  take  water  from  the  land  of  another, 
conveys  no  title,  but  is  a  mere  executory  contract, 


Depositions.  213 

Deeds  (continued). 

under  which  vendee  gains  no  right  but  the  right  to 
demand  possession  and  legal  conveyance  of  the  water 
right:  Glasford  and  Shield  v.  Baker  and  Cain,  1  W.  T. 
224. 
Alteration  of  a  deed  before  delivering,  but  after  same  has 
passed  out  of  maker's  hands,  avoids  the  deed:  Walla 
Walla  Co.  V.  Ping,  1  W.  T.  339. 
Privy  to  a  deed  is  bound  by  the  notice  it  imparts,  whether 
he  had  actual  notice  or  not:    Skellinger  v.  Smith,  1 
W.  T.  369. 
Statute  of  1867,  curing  defective  deeds,  is  constitutional, 
and  applicable  to  the  case  of  married  woman's  deed:  Id. 
Deed  acknowledged  before  county  auditor  before   1867, 
whether  valid  or  not,  was  cured  by  the  statute  of  that 
year:  Kenyon  v.  Knipe,  2  W.  T.  422, 

Defamation.     See  Slander  and  Libel. 

Default.     See  Appeal  and  Error;  Constitutional  Law;  Judg- 
ments and  Decrees. 

Defenses.     See    Answers    and    Defenses;    Criminal    Law; 
Pleading. 

Delivery.     See  Deeds. 

Demand.     See  Assumpsit;  Bills  and  Notes;  Contracts;  Con- 
version;  Counties;  Municipal  Corporations;  Replevin. 

Demnrrer.     See  Equity;  Pleading. 

Denials.     See  Answers  and  Defenses. 

Dependent  Covenants.     See  Contracts;  Deeds. 

Depositions.     See  Reference. 

Proceeding  to  take  testimony  de  bene  esse;  notice  to  the 
adverse   party   required   under  the    peculiar  circum- 
stance of  the  case:  In  the  Matter  of  T.  J.  Carter,  3  Or. 
293. 
The  proceeding  should  not  be  resorted  to  merely  to  ascer- 
tain what  an  adverse  witness  will  testify:  Id. 
Deposition  taken  in  different  proceeding   between  other 
parties,  to  prove  a  marriage  not  admissible  under  sec- 
tion 819  of  the  Code  (sec.  829,  Hill's  A.  L.):  Murray 
V.  Murray,  6  Or.  26. 
Certificate  of  commissioner  to  deposition  taken  out  of  the 
state  need  not  conform  to  the  code  requirements  of  cer- 
tificate to  deposition  taken  in  the  state:  Heirs  of  Clark 
V.  EUis,  9  Or.  128. 


214  Depositions. 

Depositions  (continued). 

Effect  of  amendment   of  1885  (sec.  397,    Hill's  A.    L.), 

in   equity  practice,   is  to  repeal  sections  of  the  Code 

allowing  parties,  after  issue  is  joined,  to  take  depositions: 

Marks  &  Co.  v.  Crow,  14  Or.  382. 
And  it  seems  under  the  statute  as  amended,  depositions 

de  bene  esse  can   no  longer  be  taken,  except  in  case 

where  reference  has  been  had:  Id. 
Deposition  to  be  used  in  an  admiralty  case  may  properly 

be  taken  befoi'e  a  notary  public:  Phelps  v.  Steamship 

City  of  Panama,  1  W.  T.  615. 
Notice  of  ten  days   for  taking  such  deposition  held   a 

reasonable  notice  in  this  case:  Id. 
Statute  of  United  States  providing  for  taking  depositions 

is  to  be  strictly  construed;  the  certificate  of  the  notary 

does  not  show  that  the  witness  was  duly  cautioned  as 

by  the  statute  required:  Id. 
Opening  of  deposition  by  the  clerk  of  court,  and  placing 

same  on  file  without  an  order  of  the  court,  precludes  its 

being  received  in  evidence:  Id. 
Deputies. 

County  clerk  cannot  appoint  deputy  with  powers  to  act 

for  him,  unless  authorized  by  statute:  State  v.  Smith,  1 

Or.  250. 
Must  transact  business  in  the  name  of  the  principal: 

Dennison  v.  Story,  1  Or.  272. 
Deputy  county  clerk  was  an  independent  officer  under 

territorial  act  of  1856:  Willamette  Co.  v.  Gordon,  6  Or. 

175. 
His  official  signature  was  "  deputy  clerk,"  and  his  duties 

and  office  were  distinct  from  the  clerk:  Id. 
Constable  may  appoint  deputy  for  particular  service,  but 

not  to  act  for  him  generally:  Prickett  v.  Cleek,  13  Or. 

415. 
Service  of  summons  by  "  deputy  constable,"  the  record 

showing  appointment  of  no  such  deputy  to  perform  the 

service,  is  void:  Id. 
Descent.     See  Administration;  Heirs;  Public  Lands;  Wilis. 
Devise.     See  Administration;  Legacies;  Wills. 
Diligence.     See  Notes  and  Bills;  Laches;  Negligence. 
Directors.     See  Corporations;  Schools. 
Disbursements.     See  Costs  and  Disbursements. 


Ditches.  215 

Discretion.     See  Appeal  and  Error;  Costs  and  Disburse- 
ments; Jury  and  Jury  Trial;  New  Trials;  Pleading; 
Practice. 
Dissolution.     See  Corporations;  Partnership. 
District  Attorney. 

May  sue  in  his  own  name  as  plaintiff  in  ci\41  action  on 
bail  bond:  Hannah  v.  Wells,  4  Or.  249. 

It  is  his  duty  to  prosecute  suits  for  foreclosure  of  mortgages 
brought  by  school  land  commissioners,  and  he  is  entitled 
to  the  statutory  fee  therefor:  Claim  of  Ison,  6  Or.  465. 

The  board  of  commissioners  has  authority  to  employ  coun- 
sel to  assist  the  district  attorney  in  such  cases:  Id. 

Actions  brought  on  official  undertakings  are  not  for  the 
recovery  of  fines  and  forfeitures,  for  which  he  is  allowed 
ten  per  centum  as  fees  by  statute:  Claim  of  Ison,  6  Or. 
4G9. 

Has  no  right  to  appear  or  claim  fees  in  suits  by  board  of 
commissioners  for  the  sale  of  school  land,  in  reference 
to  school  lands  or  funds,  where  the  state  is  not  a  party: 
Hazard's  Appeal,  9  Or.  36G. 

Improper  remarks  of,  to  jury,  how  exceptions  must  be 
taken:  State  v.  Lee  Ping  Bow,  10  Or.  27;  State  v.  Ander- 
son, 10  Or.  448;  State  v.  Abraras,  11  Or.  169. 

Cannot  intervene  in  a  suit  and  claim  forfeiture  of  a  debt 
for  usury,  for  the  benefit  of  common  school  fund:  Sujette 
V.  Wilson,  13  Or.  514. 
District  Courts.     See  Constitutional  Law;  Courts;  Judges; 
Judgments  and  Decrees;  Jurisdiction. 

Although  under  United  States  statute,  the  territorial  dis- 
trict court  is  to  be  held  at  one  place  in  each  district,  the 
legislature  may  provide  for  holding  additional  sittings 
in  each  county,  if  without  expense  to  the  United  States: 
Gird  V.  State,  1  Or.  308. 

Judicial  district  of  King  County  having  been  abolished  by 
orderof  the  judges  in  1856,  the  court  thereof  was  merged 
into  the  court  for  the  second  district:  Boycr  v.  Fowler 
1  W.  T.  101. 
Ditches. 

Powers  and  jurisdiction  of  county  commissioners  under 
act  of  1868  (c.  39,  tit.  1,  Hill's  A.  L.):  Seely  v.  Sebas- 
tian, 4  Or.  25. 

Compensation  and  damages:  Id;, 


216  Ditches. 

Ditches  (continued). 

Said  act  of  1868  is  not  unconstitutional  as  taking  property 

for  uses  not  public:  Id. 
Railroad,  turning  watercourse  into  a  ditch,  is  bound  to 

keep  the  ditch  at  all  times  in  a  condition  to  carry  the 

water  without  overflowing  adjoining  lands:  Davidson  v. 

0.  &  C.  R.  R.  Co.,  11  Or.  136. 
This  duty  is  not  aflFected  by  lapse  of  time,  or  by  the  fact 

that  other  persons  turn  water  into  the  ditch:  Id. 
Divorce. 

1.  Jurisdiction. 

2.  Causes. 

3.  Alimony  and  Pkoperty  Rights. 
4.-  Custody  of  Children. 

5.   Practice  and  Evidence. 
1.   Jurisdiction. 

Stipulation  that  party  was  divorced  in  a  certain  suit  is  an 
admission  of  the  jurisdiction  of  the  court  to  grant  the 
divorce:  Groslouis  v.  Northcut,  3  Or.  394. 

When  the  right  of  suit  accrues  by  virtue  of  residence  in 
the  state  for  a  year,  under  section  494  of  the  Code  (sec. 
498,  Hill's  A.  L.),  the  plaintiff  has  a  year  thereafter  in 
whicli  to  sue  for  causes  therein  referred  to:  Jacobsen  v. 
Jacobsen,  11  Or.  454. 

Supreme  Court  has  no  jurisdiction  to  review  decree  of  di- 
vorce, but  may  review  other  proceedings  in  the  suit: 
Madison  v.  Madison,  1  W.  T.  60;  contra,  Tierney  v.  Tier- 
ney,  1  W.  T.  568. 

Divorce  act  forbidding  Supreme  Court  to  review  final  order 
of  District  Court  is  contrary  to  provisions  of  Organic 
Act,  and  to  such  extent  void:  Tierney  v.  Tierney,  1  W.  T. 
568. 

Legislature  of  Oregon  Territory  had  plenary  power  to  grant 
divorce  by  special  act,  and  the  courts  have  no  authority 
to  review  its  action:  Maynard  v.  Valentine,  2  W.  T.  3; 
Maynard  v.  Hill,  2  W.  T.  321. 

To  grant  divorce  does  not  impair  the  obligation  of  con- 
tracts: Id. 

Nor  does  such  action  violate  provisions  of  the  ordinance 
of  1787,  respecting  contract  rights  and  forbidding  legis- 
lative interference  with  the  primary  disposal  of  the 
soil:  Id. 


Divorce.  217 

Divorce  (continued). 
2.   Causes. 

Concealment  by  woman  from  her  intended  husband  of  the 
fact  that  she  had  been  the  mother  of  an  illegitimate 
child,  not  such  fraud  as  will  annul  marriage:  Smith  v. 
Smith,  8  Or.  100. 

False  accusation  of  unchastity  is  sufficient  ground  for 
divorce:  Id.;  McMahan  v.  McMahan,  9  Or.  525. 

The  fact  that  such  accusations  were  made  after  parties 
separated  is  immaterial:  Id. 

Acts  of  cruelty,  though  presumed  condoned  by  cohabita- 
tion after,  are  revived  by  repetition:  Atterberry  v.  At- 
terberry,  8  Or.  224. 

After  reconciliation,  any  acts  of  cruelty  creating  reason- 
able fear  of  personal  violence  will  revive  condoned  cru- 
elty: Id. 

Where  adultery  with  a  near  relative  is  alleged  as  ground, 
it  should  be  clearly  proved:  Rickard  v.  Rickard,  9  Or. 
1G8. 

Keeping  a  woman  in  the  house  with  whom  husband  was 
groundlessly  suspected  and  charged  by  the  wife  with 
adultery,  held  not  cruelty  to  wife:  Id. 

Keeping  persons  in  the  house,  against  protest  of  wife,  who 
habitually  mistreat  her  and  render  her  life  burdensome, 
is  cruelty  of  the  husband,  and  ground  for  divorce:  Hall 
V.  Hall,  9  Or.  452. 

Charge  of  unchastity,  whereby  wife  acquired  venereal 
disease  and  communicated  same  to  husband,  if  false,  is 
ground  for  divorce:  McMahan  v.  McMahan,  9  Or.  525. 

Actual  violence  or  reasonable  apprehension  of  bodily  in- 
jury is  necessary  as  cause  for  divorce  on  the  ground  of 
cruelfy :  Cline  v.  Cline,  10  Or.  474. 

What  is  a  personal  indignity  depends  to  some  extent  on 
the  character  and  circumstances  of  the  parties:  Id.; 
Adams  v.  Adams,  12  Or.  17G. 

Cruelty  must  be  unmerited  and  unprovoked,  or  out  of  pro- 
portion to  the  provocation:  Taylor  v.  Taylor,  11  Or.  303. 

The  policy  of  the  law  is  to  sustain  the  marriage  relation, 
and  a  cause  for  divorce  must  be  clearly  shown:  Id. 

Imprudent,  unreasonable,  or  jealous  conduct  is  not  alone 
sufficient,  necessarily;  defendant  must  have  evinced  a 
malignant  desire  to  annoy  or  harass:  Boon  v.  Boon,  12 
Or.  437. 


218  Divorce. 

Divorce  (continued). 

3.   Alimony  and  Property  Rights. 

Plaintiff  (husband)  ordered  to  pay  over  $250  for  expenses 
of  defendant  in  defending,  and  to  pay  her  traveling  ex- 
penses from  distant  state:  Smith  v.  Smith,  3  Or.  363. 

Whether  under  act  of  1854  court  had  power  to  transfer 
lands  of  party  to  children:  Groslouis  v.  Northcut,  3  Or. 
394;  Doscher  v.  Blackiston,  7  Or.  403. 

Where  pleadings  make  no  reference  to  property,  court  can- 
not transfer  a  particular  tract:  Id. 

Disposition  of  real  estate  is  incidental  to  divorce,  but  com- 
plaint must  state  the  facts:  Id. 

Where  pleadings  and  decree  are  silent  as  to  real  property, 
plaintiff  acquires  no  right  therein  by  the  divorce:  Bam- 
ford  V.  Bamford,  4  Or.  30;  Hall  v.  Hall,  9  Or.  452. 

A  general  decree  for  one  third  of  the  property  of  the  de- 
fendant cannot  be  entered  in  granting  the  divorce, 
where  the  pleadings  are  silent  as  to  such  property: 
Id.;  Hall  V.  Hall,  9  Or.  452. 

Judgment  roll  must  contain  a  description  of  the  property 
adjudicated  upon:  Id. 

Though  divorce  be  granted,  court  may  afterward  decree 
division  of  j)roperty,  if  done  in  the  same  suit:  Id. 

That  defendant  had  fraudulently  conveyed  away  his  prop- 
erty before  suit  for  divorce  was  begun  is  not  sufficient 
ground  for  opening  decree  of  divorce,  unless  the  fact 
was  not  known:  Id. 

After  suit  is  ended  and  wife  granted  divorce,  she  may  at- 
tack fraudulent  conveyance,  made  by  husband  any 
time  after  cause  of  suit  arose:  Barrett  v.  Barrett,  5 
Or.  411;  Weiss  v.  Bethel,  8  Or.  522. 

It  is  the  peremptory  duty  of  the  court  to  decree  one-third 
part  of  all  real  estate  owned  by  the  losing  party  to  the 
other,  if  the  prayer  for  the  divorce  is  granted :  Wetmore 
V.  Wetmore,  5  Or.  469. 

Third  party  to  whom  husband  fraudulently  conveys  legal 
title  may  be  made  party  defendant  in  suit  by  wife  for 
divorce:   Id. 

Court  cannot  award  more  than  one  third  of  the  losing 
party's  property  to  the  other:  Rees  v.  Rees,  7  Or.  47, 

Under  act  of  1854,  court  could  direct  husband  to  pay  a 
Bum  of  money  in  lieu  of  the  wife's  equitable  interest 


Divorce.  219 

Divorce  (continued). 

in  land,  standing  in  his  name,  in  granting  her  a  divorce, 
and  acceptance  estops  her:  Brooks  v.  Ankeny,  7  Or.  4G1. 

Woman  is  entitled  to  hold  property  earned  by  her  after 
marriage,  and  to  control  the  same  herself:  Atterberry 
V.  Atterberry,  8  Or.  224. 

Decree  of  divorce  being  silent  as  to  property,  the  right  to 
property  fraudulently  concealed  at  that  time  may  be 
afterward  enforced  in  an  original  suit  in  equity:  Weiss 
V.  Bethel,  8  Or.  522. 

The  plaintiff  in  such  suit  may  make  persons  in  possession, 
claiming  adversely  to  her,  parties  defendant:  Id. 

Delay  of  over  thirteen  years,  with  sufficient  knowledge  to 
be  put  on  inquiry,  is  laches:  Id. 

Mistake  in  deed  between  parties  to  a  divorce  suit  made  in 
consideration  of  not  defending,  will  not  be  corrected  by 
a  court  of  equity:  Phillips  v.  Thorp,  10  Or.  494. 

Where  the  plaintiff's  principal  object  is  to  secure  certain 
property  rights,  a  divorce  will  be  refused:  Adams  v. 
Adams,  12  Or.  176. 

Where  plaintiff'  neglected  to  pay  into  court  money  for  de- 
fense by  wife  within  the  time  ordered  by  the  court,  but 
subsequentl}'-  paid,  and  made  showing  by  affidavit  in  ex- 
cuse, it  was  error  to  dismiss  the  suit  for  his  default: 
Newhouse  v.  Newhouse,  14  Or.  290. 

The  showing  of  inability  to  pay  constitutes  sufficient  ex- 
cuse to  purge  the  contempt,  and  the  neglect  was  not 
contumacious  or  fraudulent:  Id. 

Decree  regarding  realty,  contrary  to  the  allegations  and 
proofs,  must  be  reversed:  Bender  v.  Bender,  14  Or.  353. 

Order  requiring  husband  to  pay  wife's  counsel  fees,  and  a 
certain  sum  to  trustees  for  her  use  during  life,  is  sanc- 
tioned by  the  divorce  act:  Madison  v.  Madison,  1  W.  T. 
60. 

Husband  having  begun  suit  for  divorce  was  ordered  to 
pay  into  court  certain  sums  for  wife  for  expenses  of  her 
defense,  and  subsequently  he  dismissed  the  suit;  the 
court  properly  entered  judgment  against  him  for  reason- 
able expenses  of  wife,  including  counsel  fees:  Thorndike 
v.  Thorndike,  1  W.  T.  175. 

The  amount  of  alimony  is  to  be  regulated  by  the  facts  as 
disclosed:  Tierney  v.  Tierney,  1  W.  T.  668. 


220  Divorce. 

Divorce  (continued). 

4.  Custody  of  Children. 

Decree  assigning  children  to  custody  of  one  of  the  parties 
is  appealable:  Pittman  v.  Pittman,  3  Or.  472. 

Court  has  full  power;  and  mere  fact  of  awarding  children 
to  party  in  fault  raises  no  presumption  of  error:  Pitt- 
man V.  Pittman,  3  Or.  553. 

Father  is  entitled  to  custody  of  minor  child  rather  than 
maternal  grandfather,  wife  being  in  fault:  Jackson  v. 
Jackson,  8  Or.  402. 

Decree  failing  to  provide  for  the  care  and  custody  of  the 
minor  children  of  the  marriage  is  defective:  Boon  v. 
Boon,  12  Or.  437. 

Order  of  District  Court  awarding  custody  and  fixing  al- 
lowance for  support  of  child  is  interlocutory,  and  not 
subject  to  review;  the  child  is  the  ward  of  the  court: 
Tierney  v.  Tierney,  1  W.  T.  568. 

5.  Practice  and  Evidence. 

Ten  days'  service  in  suit  within  the  state  is  sufficient  un- 
der the  statute:  Rochester  v.  Rochester,  1  Or.  307. 

Property  rights  may  be  adjusted  after  divorce  granted, 
but  must  be  done  in  same  suit:  Bamford  v.  Bamford, 
4  Or.  30. 

No  decree  concerning  the  property  can  be  entered  where 
the  pleadings  are  silent  as  to  the  existence  of  property: 
Id.;  Hallv.  Hall,  9  Or.  452. 

Though  the  suit  is  based  upon  allegations  which,  if  true, 
decide  the  defendant  guilty  of  a  crime,  the  charge  is 
sufficiently  proved  by  a  preponderance  of  evidence: 
Smith  V.  Smith,  5  Or.  186. 

Stipulation  for  divorce  and  custody  of  children  is  void: 
Savage  v.  Savage,  10  Or.  331. 

Person,  through  her  own  default  and  negligence  allowing 
statutory  time  for  taking  testimony  to  expire,  cannot 
claim  as  a  matter  of  right  that  the  suit  siiall  be  con- 
tinued, and  the  time  extended  for  taking  such  evidence: 
Id. 

Agreement  not  to  defend  is  void  as  against  public  policy: 
Phillips  V.  Thorp,  10  Or.  494. 

Demurrer  to  complaint  is  not  such  an  admission  of  the 
charge  as  is  meant  in  section  494  of  the  Code  (sec.  498, 
Hill's  A.  L.),  which  provides  that  in  certain  cases  the 


Dower.  221 

Divorce  (continued). 

charge  may  be  admitted  by  the  defendant,  and  he  may 
show  in  bar  that  it  did  not  occur  within  a  period  fixed 
by  the  statute:  Rice  v.  Rice,  13  Or.  337. 

To  avail  himself  of  that  provision,  defendant  must  admit 
the  charge,  not  merely  to  test  its  legal  sufficiency,  but 
as  an  actual  fact:  Id. 

Defendant  may  file  cross-bill  and  counterclaim,  and  de- 
mand and  receive  aflirmative  relief:  Dodd  v  Dodd  14 
Or.  338. 

Plaintiff  failing  to  establish  her  case  was  nevertheless 
awarded  costs,  it  appearing  that  defendant  was  not 
without  fault,  and  had  property  partly  earned  by  plain- 
tiff: Bender  v.  Bender,  14  Or.  353. 
A  decree  of  divorce  is  not  subject  to  review  on  error,  but 
there  may  be  other  questions  involved  which  arc  re- 
viewable: Madison  v.  Madison,  1  W.  T.  60. 
But  the  statute  forbidding  review  of  such  decree  is  void, 

and  error  lies:  Tierney  v.  Tierney,  1  W.  T.  568. 
The  provisions  of  the  Practice  Act  regarding  waiver  of  jury 
trial,  and  requiring  judge  to  state  in  writing  conclusions 
of  fact  and  law  separately,  does  not  apply  to  divorce 
cases:  Madison  v.  Madison,  1  W.  T.  60. 
Former  alleged  marriage  held  not  to  be  before  the  Su- 
preme Court  upon  the  record:  Tierney  v    Tiernev    1 
W.  T.  568. 
Actions  for  divorce  are  proceedings  at  law,  and  the  find- 
ings of  the  lower  court  stand  as  the  verdict  of  a  jury, 
not  to  be  set  aside  unless  manifestly  contrary  to  the 
evidence:  Id. 

Docket.     See^Judgments  and  Decrees;  Justice  of  the  Peace. 

Documentary  Evidence.     See  Evidence. 

Dogs.     Sec  Common  Carriers. 

Domestic  Animals.     See  Animals. 

Domestic  Relations.  See  Divorce;  Guardian  and  Ward; 
Husband  and  Wife;  Infancy;  Master  and  Servant,' 
Parent  and  Child. 

Domicile'.     See  Elections;  Public  Lands. 

Donation  Act.     See  Public  Lands. 

Dower. 

Woman  docs  not  relinquish  her  dower  by  signing  and 
scaling,  but  not  acknowledging,  her  husband's  deed: 
Moore  v.  Thomas,  1  Or.  201. 


222  Dower. 

Dower .( continued ) . 

Grantee  under  quitclaim  deed  may  show  his  grantor  had 

no  estate   to  which   dower   could   attach:    Farnum  v. 

Loomis,  2  Or.  29. 
Cannot  attach  to  an  equity,  in  Oregon:  Id.;  Whiteaker 

V.  Vanschoiack,  5  Or.  113. 
Assignment  of,  not  necessary  to  right  of  action  for,  against 

grantee  of  husband  denying  the  right  to  dower:  McKay 

V.  Freeman,  6  Or.  449. 
The  complaint  need  not,  in  addition  to  allegation  that 

defendant  wrongfully  withholds  possession,  allege  that 

he  denies  plaintiff's  right:  Id. 
Widow  is  entitled   to  dower  in   donation  claim,  deeded 

away  by  husband  alone  after  they  had  complied  with 

the  conditions  of  the  Donation  Act,  but  before  he  has 

obtained  patent:  Id. 
Widow  is  entitled  to  dower  in  husband's  half  of  donation 

claim,  under  section  4  of  the  act,  where  the  husband 

dies  before  patent  issues:  Love  v.  Love,  8  Or.  23. 
Before  dower  is  assigned,  widow  has  no  estate  in  deceased 

husband's  lands,  and  no  right  to  rents;  administrator 

is  entitled  to  all  the  rents  to  pay  debts:    Leonard  v. 

Grant,  8  Or.  276. 
Dower  of  the  common  law  is  recognized  by  the.  laws  of 

Washington  Territory,  and   is  to  be   assigned  by  the 

rules  of  the  common  law:  Ebey  v.  Ebey  and  Beam,  1 

W.  T.  185. 
Dower  extends  to  donation  claims,  and  the  reserved  right 

of  eminent  domain  in  the  United  States  does  not  defeat 

the  right  of  dower  therein:  Id. 
Withholding  dower  entitles  the  claimant  to  damages:  Id. 
No  statutory  method  of  admeasuring  such  damages  being 

prescribed,  that  adopted  by  the  lower  court  approved: 

Id. 
The  act  of  November  9,  1871,  abolished  dower  in  Wash- 
ington Territory,  by  declaring  that  "  neither  dOwer  or 

curtesy  shall  hereafter  accrue":  Hamilton  v.  Ilirsch,  2 

W.  T.  223. 
Such  legislation  is  taking  away  an  expectancy,  not  a 

vested  right:  Id. 
Drafts.     See  Bills  and  Notes. 
Drunkenness.     See  Neghgene'e. 


Easements.  223 

Duress.     See  Fraud  and  Deceit.  * 

By  threats,  need  not  be  by  such  threats  as  would  operate 
on  a  person   of  ordinary  firmness,  but  it  is  duress  if 
they  do  in  fact  compel  the  threatened  person:  Parmen- 
tier  V.  Pater,  13  Or.  121. 
Debtor  by  threats  and  menaces  obtaining  relinquishment 
of  debt  from  creditor  of  weak  mind ;  the  release  is  in- 
valid though  the  creditor  was  not  insane:  Id. 
Dying  Declarations.     See  Evidence. 
Easements.     See    Eminent    Domain;    Water  and  Water- 
courses. 
One  who  has  an  easement  has  the  right  to  enter  the  ser- 
vient estate  when   necessary  to  repair:  Thompson   v. 
Uglow,  4  Or.  369. 
Owner  of  mill-race  and  right  of  way  may  enter  and  dig 

up  and  use  adjacent  soil  when  necessary:  Id. 
Cannot  dig  or  use  such  soil  when  there  is  any  other  mode 

of  repairing:  Id. 
Grant  of  a  right  of  way  for  a  mill-race  is  a  mere  easement, 
and  docs  not  include  a  right  to  appropriate  water  flow- 
ing on  grantor's  land:  Miller  v.  Vaughn,  8  Or.  333. 
Express  reservation  of  such  water  is  not  necessary  in  the 

grant:  Id. 
Grant  of  right  of  way,  with  right  to  enter,  etc.,  for  water 

ditches,  construed:  Spear  v.  Cook,  8  Or.  380. 
Right  to  overflow  adjoining  lands  is  an  easement,  and  will 
pass  as  an  appurtenant  by  grant  of  a  mill  with  the 
appurtenances:  Jackson  v.  Trullinger,  9  Or.  393. 
Such  right  of  overflow,  and  the  dam  and  rights  of  flowage, 
are  incident  to  the  enjoyment  of  a  mill  granted,  and 
pass  without  the  word  '•  appurtenances  "  :  Id. 
Irr^ction  to  condemn  land  for  railway,  an  easement  of 
right  of  way,  and  not  the  land  itself,  is  acquired :  0.  R. 
&  N.  Co.  V.  Oregon  Real  Estate  Co.,  10  Or.  444. 
One  claiming  a  right  to  overflow  lands  by  erecting  a  dam 
must  show  his  right  by  grant,  prescription,  or  license: 
Wattier  v.  Miller,  11  Or.  329. 
Title  of  occupant  of  servient  estate  cannot  be  attacked  by 

one  showing  no  right  to  the  easement:  Id. 
Such  claimant  cannot  enjoin  drainage  by  one  having  pos- 
session of  the  overflowed  land:  Id. 
Grant  of  easement  is  presumed  from  an  adverse  enjoy- 


224  Easements. 

Easements  (continued). 

ment  for  the  statutory  period:  Johnson  v.  Knott,  13  Or. 

308. 
Payment  of  taxes  by  the  owner  of  the  soil  is  not  incon- 
sistent with  the  acquisition  of  such  right:  Id. 
lyectment. 

Donee  under  Donation  Act  may  maintain, against  one  who 

shows  no  title  but  possession:  Keith  v.  Cheeny,  1  Or. 

285. 
Possession  of  defendant  is  presumed  lawful,  and  plaintiff 

must  recover  on  strength  of  his  own  title:  McEwan  v. 

Portland,  1  Or.  300. 
City  of  Portland  may  maintain  action  to  recover  public 

square  dedicated:  Leland  v.  Portland,  2  Or.  46. 
Plaintiff  need  not  set  out  his  muniments  of  title:  Pease 

V.  Hannah,  3  Or.  301. 
Where  defendant  set  up  title  to  undivided  interest,  re- 
quired to  show  what  interest:  Id. 
Defendant  claiming  to  own  undivided  one  fifth  must  set 

out  names  of  his  co-tenants:  McCown  v.  Hannah,  3 

Or.  302. 
Where  plaintiff's  title  is  denied,  burden  is  on  him  to  show 

title  in  himself:  Farley  v.  Parker  and  Sutherland,  4  Or. 

269. 
Where   both  parties  derive  title  from  the  same  person, 

neither  can  deny  the  title  in   such  person:  Dolph  v. 

Barney,  5  Or.  192. 
Decree  which  operates  as  a  deed,  admissible  in  evidence 

to  prove  title:  Id. 
Tenant  in  common  may  recover  the  whole  in  action  against 

a  stranger:  Id. 
Proper  remedy  to  recover  for  use  and  occupation,  unless 

relation  of  landlord  and  tenant,  express  or  implied,  ex- 
'     ists:  Espy  v.  Fenton,  5  Or.  423. 
Deed  of  insane  person  is  void,  and  when  offered  to  prove 

title  in  ejectment  may  be  impeached:  Farley  v.  Parker, 

6  Or.  105. 
Plaintiff  must  set  forth  in  his  complaint  the  nature  of  his 

CBtatc,  or  his  action  will  be  regarded  as  forcible  entry 

and  detainer:  Thompson  v.  Wolf,  6  Or.  308. 
Person  ejected  cannot,  having  entered  the  land  with  the 

intention  of  holding  adversely,  on  his  being  ousted,  re- 


Ejectment.  225 

Ejectment  (continued). 

move  a  building  erected  by  hira,  though  of  wood  on  posts 
or  blocks:  Doscher  v.  Blackiston,  7  Or.  143. 

Defendant  may  plead  inconsistent  defenses  in  real  actions: 
Moore  v.  Willamette  T.  &  L.  Co.,  7  Or.  355. 

May  plead  ownership  in  himself  and  in  another,  and  proof 
of  either  will  defeat  the  action:  Id. 

Judgment  in  favor  of  defendant  is  conclusive  as  to  the 
lawfulness  of  his  title  and  entry  when  brought  in  ques- 
tion collaterally:  Hill  v.  Cooper,  8  Or.  254. 

Defendant  is  not  allowed  to  give  in  evidence  facts  show- 
ing his  own  title  under  mere  denial  of  plaintiff's  title, 
and  is  confined  to  proof  of  the  weakness  of  the  latter: 
Phillippi  v.  Thompson,  8  Or.  429. 

Defendant  may  introduce  deeds  recited  in  a  confirmatory 
deed  relied  on  by  plaintifi",  for  the  purpose  of  showing 
the  true  boundaries  of  the  land  claimed  by  the  plain- 
tifi": Id. 

Under  section  316,  Civil  Code  (sec.  319,  Hill's  A.  L.),  no- 
mere  equitable  right  or  equitable  estoppel  can  be  pleaded 
as  a  defense:  Newby  v.  Rowland,  11  Or.  133. 

Ejectment  is  not  the  remedy  by  which  a  widow  can  get 
possession  of  dwelling-house  for  her  quarantine:  Aiken 
V.  Aiken,  12  Or.  203. 

In  contest  between  legal  titles,  defendant  may  assail 
plaintiff^'s  title,  and  assume  the  burden  of  proving  notice 
and  want  of  consideration:  Mclntyre  v.  Kamm,  12  Or, 
253. 
•  Defendant  claiming  under  statute  of  limitations  may  giver 
in  evidence  a  tax  deed  to  show  color  of  title  accom- 
panied by  possession,  though  the  description  i§  imper- 
fect: Smith  V.  Shattuck,  12  Or.  362. 

Co-tenants  cannot  join  as  plaintifi's  in  ejectment,  but  the 
defect  is  waived  by  answering  over:  Mintcr  v.  Durham, 
13  Or.  470. 

Defendant  cannot  show  mistake  in  the  description  in  hi» 
deed,  or  vary  its  terms  by  parol  proof  contradicting  it, 
•the  deed  not  having  a  latent  ambiguity:  Holcomb  v. 
Mooney,  13  Or.  503. 

It  is  not  error  to  permit  an  amendment  on  the  trial  by 
striking  out  an  allegation  and  denial  of  defendant's  pos- 
session in  the  complaint  and  the  reply,  where  there  is 
Ob.  Dig.— 15 


226  Ejectment 

iyectment  (continued). 

no  prejudice  to  substantial  riglits:  Swift  v.  Mulkey,  14 
Or.  59. 

Where  plaintiff  proves  title,  he  is  entitled  to  possession, 
unless  defendants  show  a  better  title  or  adverse  posses- 
sion for  ten  years:  Id. 

Adverse  possession  for  the  statutory  period  confers  title 
sufficient  to  maintain  ejectment:  Joy  v.  Stump,  14  Or. 
361. 

An  unacknowledged  deed,  to  be  followed  by  proof  of  notice 
thereof,  is  admissible  as  proof  of  title  as  against  one 
holding    a   subsequent   recorded   deed:    Manaudas    v 
Mann,  14  Or.  450. 

Action,  under  the  statute,  is  not  an  action  to  try  merely 
the  abstract  legal  title  to  the  soil,  but  to  determine  who 
is  entitled  to  the  possession:  Burmeister  v.  Howard,  1 
W.  T.  207. 

Holder  of  legal  title  may  not  recover,  if  by  his  acts  the 
equitable  title  be  in  the  adverse  party:  Id. 

Where  plaintiff  claims  under  certificate  of  purchase  of 
public  lands,  defendant  may  plead,  by  way  of  induce- 
ment, a  state  of  facts  upon  which  the  commissioner  of 
the  general  land-oflice  caused  such  certificate  to  be  can- 
celed: Hays  v.  Parker,  2  W.  T.  198. 

In  such  action,  when  it  appears  that  the  subject-matter 
thereof  is  pending  before  the  interior  department  of  the 
the  United  States,  and  not  fully  determined,  the  court 
should  dismiss  the  action  at  plaintiff's  cost:  Id. 
Elections.     See  Mandamus;  Quo  Warranto;  Practice. 

Votes  of  precinct  cannot  be  rejected  because  no  poll-book 
was  sent  to  county  clerk:  Day  v.  Kent,  1  Or.  123; 
Cresap  v.  Gray,  10  Or.  345. 

If  it  can  be  ascertained  who  has  majority,  irregularities 
in  the  returns  will  not  defeat:  Darragh  v.  Bird,  3  Or. 
229;  Cresap  v.  Gray,  10  Or.  345. 

On  contest,  the  office  will  be  given  to  him  who  has  the 
right  by  the  votes:  Territory  v.  Pyle,  1  Or.  149;  Dar- 
ragh v.Bird,  3  Or.  229. 

On  contest,  the  notice  is  the  commencement,  and  court 
has  no  jurisdiction  to  hear  any  motion  in  the  case 
until  its  service  and  return:  Mvers  v.  Warner,  3  Or. 
212. 


Elections.  227 

Elections  (continued). 

Notice  must  state  definite  time  for  hearing;  additional 
indefinite  words  surplusage:  Id. 

So  when  the  time  stated  is  *'  at  the  next  term  of  the  Circuit 
Court  of  said  county,  or  as  soon  as  said  judge  will  hear 
the  same,"  the  indefinite  words  may  be  rejected:  Id. 

Judge  at  chambere  may  do  whatever  court  might  do  in 
term  time  in  contest  cases:  Id. 

Plaintiff  having  named  a  day  for  hearing,  his  motion  for 
earlier  day  denied:  Id. 

Mandamus  not  proper  remedy  to  try  ultimate  right  to 
office:  Warner  v.  Myers,  3  Or.  218;  S.  C,  4  Or.  72. 

An  answer  denying  the  legality  of  the  election  of  the  peti- 
tioner will  not  abate  the  writ  of  mandamus:  Id. 

Certificate  of  canvassers  is  evidence  of  what  was  decided 
by  them:  Id. 

Powers  of  sheriff  in  office  cease  when  served  with  certifi- 
cate of  the  election  of  successor:  Id. 

Contest  pending  does  not  stay  the  eflfect  of  such  certifi- 
cate: Id. 

Elector  should  vote  for  county  officers  only  in  precinct 
where  he  resides:  Darragh  v.  Bird,  3  Or.  229. 

Pardon  does  not  restore  person  convicted  of  felony  to 
rights  of  elector:  Id.;  contra,  Wood  v.  Fitzgerald,  3 
Or.  568. 

What  constitutes  a  residence:  Darragh  v.  Bird,  3  Or.  229; 
Wood  V.  Fitzgerald,  3  Or.  568. 
-    Person  duly  challenged  may  not  vote  until  sworn:  Dar- 
ragh V.  Bird,  3  Or.  229. 

After  the  hour  for  closing  polls,  they  cannot  be  opened 
again:  Id. 

Party  attacking  a  voter  who  has  voted  must  show  he  is 
disqualified:  Id. 

Residence  of  person  in  employ  of  United  States:  Id. 

Rejected  votes  should  appear  on  poll-book:  Id. 

Naturalized  person, a  voter  on  receiving  final  papers:  Id.; 
Wood  V.  Fitzgerald,  3  Or.  568. 

Right  of  judges  to  reject  votes:  Id. 

On  contest,  will  of  majority  as  expressed  by  their  votes 
will  be  given  effect:  Id. 

Inquiry  on  contest,  limited  to  the  votes  returned  on  poll- 
book:  Id. 


228  Elections. 

Elections  (continued). 

Limitations  of  suffrage  to  white  persons  by  state  constitu- 
tion is  abrogated  by  the  fifteenth  amendment  of  the 
United  States  constitution:  Id. 

Costs  cannot  be  allowed  either  party  in  contested  election 
case:  Id. 

Municipality  has  no  power  to  try  contest  of  city  election, 
unless  expressly  authorized:  Robertson  v.  Groves  and 
Corvallis,  4  Or.  210. 

The  right  is  not  implied  from  its  right  to  provide  for  elec- 
tion of  city  officers,  nor  from  its  general  authority  to 
pass  by-laws  and  ordinances:  Id. 

Indictment  for  illegal  voting  under  section  G30  of  the 
Criminal  Code  (sec.  1846,  Hill's  A.  L.):  State  v.  Bruce, 
5  Or.  68. 

Mandamus,  not  injunction,  proper  remedy  to  contest  elec- 
tion selecting  county  seat:  McWhirter  v.  Brainard,  5 
Or.  426. 

Jurisdiction  of  municipal  body,  having  power  to  judge  of 
the  qualifications  and  election  of  its  members,  is  not  ex- 
clusive; Circuit  Court  has  power  to  inquire  into  the 
right  to  office  under  section  354  of  the  Code  (sec.  357, 
Hill's  A.  L.):  State  v.  McKinnon,  8  Or.  493. 

Ballot  on  colored  paper  is  illegal  at  any  election  under 
the  general  laws:  Id. 

In  case  of  a  tie,  neither  candidate  is  elected,  and  neither 
can  exercise  the  duties  of  office  until  the  right  is  deter- 
mined by  lot,  and  the  person  declared  duly  elected:  Id. 

On  review,  alleged  error  of  law  in  counting  votes  by  com- 
mon council  of  Portland  cannot  be  retried,  the  city 
charter  making  the  council  the  final  judge:  Simon  v. 
Portland  Com.  Council,  9  Or.  437. 

Loose  tally-sheets  returned  in  the  poll-books  cannot  be 
considered  by  canvassers  as  part  of  the  returns:  Simon 
V.  Durham,  10  Or.  52. 

Precinct  omitted  by  canvassers  as  not  returned  wlien  they 
canvassed  may  be  counted  by  the  court  on  contest,  hav- 
ing in  the  mean  time  been  duly  returned:  Cresap  v. 
Gray,  10  Or.  345. 

Vote  of  a  precinct  should  be  counted,  though  returned 
more  than  ten  days  after  the  election,  if  regular  and 
the  vote  in  that  precinct  was  regularly  cast:  Id. 


Eminent  Domain.  229 

Elections  (continued). 

Act  giving  judge  power  to  hear  contest  in  vacation  is  not 
unconstitutional:   Id. 

Act  requiring  registry  by  voters  as  a  prerequisite  to  vot- 
ing is  void:  White  v.  Commissioners,  13  Or.  317. 

Requirement  to  register  on  a  previous  day  adds  an  illegal 
condition  to  the  qualifications  prescribed  by  the  con- 
stitution: Id. 

Duty  of  county  clerk  to  make  out  notices  of  election  may 
be  enforced  by  mandamus:  State  v.  Ware,  13  Or.  380. 

Circumstance  of  a  person  voting  at  a  presidential  election 
in  another  state  would  not  establish  his  residence  out 
of  the  territory  against  his  sworn  statements  of  resi- 
dence and  unchanged  intention  of  returning:  Clarke  v. 
Territory,  1  W.  T.  68. 

Act  of  Congress,  1869,  regulating  elections  in  Washington 
Territory,  had  the  effect  of  changing  the  time  for  elec- 
tions of  county  and  other  officers:  Davidson  v.  Carson, 
1  W.  T.  307. 
Embezzlement. 

Embezzlement  is  proper  term  to  describe  the  offense  when 
an  agent  fraudulently  converts  the  money  of  his  em- 
ployer: State  V.  Sweet,  2  Or.  127. 
Eminent   Domain.     See    Constitutional    Law;    Municipal 
Corporations;  Public  Lands;  Railroads. 

1.  The  Power  and  its  Nature. 

2.  Proceedings  and  Practice. 

.    3.    Compensation  and  Damages. 
1.   The  Power  and  its  Nature. 

In  action  to  condemn,  plaintiff  cannot  disparage  defend- 
ant's title:  Willamette  Falls  C.  &  L.  Co.  v.  Kelly,  3 
Or.  99. 

Plaintiff  must  make  all  owners  parties,  and  cannot  take 
advantage  by  his  neglect:  Id. 

Condemnation  must  be  for  public  use;  void  if  for  private 
use:  Oregon  Cascade  R.  R.  Co.  v.  Baily,  3  Or.  164. 

Corporation  has  no  greater  right  in  property  condemned 
than  in  property  purchased:  Id. 

Property  held  by  one  (corporation  for  public  use,  not  gen- 
erally liable  to  condemnation:  Id. 

Corporation  authorized  as  carrier,  not  necessarily  limited 
to  one  side  of  river  at  portage:  Id. 


Eminent  Domain. 

Eminent  Domain  (continued). 

Has  no  exclusive  right  to  use  of  right  of  way  not  neces- 
sary to  its  business:  Id. 

Land  voluntarily  abandoned  by  corporation  is  liable  to 
condemnation  by  another:  Id. 

Judicial  condemnation,  not  exercised  when  agreement  as 
to  purchase  can  be  had:  Oregon  Cascade  R.  R.  Co.  v. 
Baily,  3  Or.  178. 

Mines  of  precious  metals  belong  to  the  eminent  domain 
of  the  sovereignty:  Gold  Hill  I.  M.  Co.  v.  Ish,  5  Or.  104. 

Statute  authorizing  establishing  of  private  road  over  land 
of  another  without  consent  is  void:  Douglas  Co.  Road 
Co.  V.  Abraham,  4  Or.  318. 

County  Court  has  no  jurisdiction  to  try  questions  of  emi- 
nent domain:  C.  &  G.  Road  Co.  v.  Douglas  Co.,  5  Or. 
280. 

Power  of  County  Court  to  lay  out  road  over  road  owned 
by  private  company:  Id. 

Corporation  cannot  appropriate  highway  established  by 
dedication  without  applying  to  the  County  Court: 
Douglas  Co.  Road  Co.  v.  Abraham,  5  Or.  318. 

The  paramount  control  of  streets  in  a  city  and  roads  in 
the  country  is  in  the  legislature:  East  Portland  v. 
Multnomah  County,  G  Or.  G2. 

The  legislature  may  transfer  its  control  of  city  streets  to 
the  municipality:  Id. 

Taking  property  for  roade  without  awarding  damages 
before  deducting  benefits  is  constitutional:  Putnam  v. 
Douglas  County,  6  Or.  328. 

Private  corporation,  by  agreement  with  County  Court 
under  the  statute,  may  locate  its  road  part  of  the  way 
over  a  public  highway,  acquiring  thereby  a  common 
right  of  user:  D.  C.  R.  Co.  v.  C.  &  G.  R.  Co.,  8  Or.  102. 

This,  though  another  company,  without  the  agreement, 
has  already  located  thereon:   Id. 

Witliout  agreement  with  the  authorities,  company  cannot 
appropriate  to  its  exclusive  use  public  grounds  duly 
dedicated:  Oregon  R'y  Co.  v.  Portland,  9  Or.  231. 

The  statute  does  not  contemplate  a  taking  of  such  public 
property  when  consent  cannot  be  obtained,  and  using 
the  same  to  the  subversion  of  such  public  use:  Id. 

Appropriation   of  public  Jevec  for   depots,  etc.,  without 


Eminent  Domain.  231 

Eminent  Domain  (continued). 

agreement,  is  an  obstruction  of  the  public  rights  not 
permitted  by  the  statute:  Id. 

Legislature  cannot  authorize  aj^propriation  without  com- 
pensation first  assessed  and  tendered:  Oregonian  R'y 
Co.  V.  Hill,  9  Or.  377. 

Strict  compliance  with  the  statute  is  necessary:  Id. 

Evidence  of  an  attempt  to  agree  upon  compensation  is  a 
prerequisite  to  action:  0.  R.  &  N.  Co.  v.  Oregon  Real 
Estate  Co.,  10  Or.  444. 

Judgment  for  the  land  absolutely  cannot  be  rendered;  an 
easement  of  right  of  way  only  is  secured:  Id. 

The  state  acquires  title  to  lands  gradually  submerged  by 
the  sea:  Wilson  v.  Shiveley,  11  Or.  215. 

Grant  by  the  legislature  to  railroad  company  of  the  use 
of  public  levee  previously  dedicated  to  the  public  in  a 
city,  providing  for  the  protection  of  the  rights  of  the 
public  in  accordance  with  the  dedication,  is  not  invalid, 
and  is  not  a  diversion  of  the  public  use:  P.  &  W.  V. 
R.  R.  Co.  V.  Portland,  14  Or.  188. 

Railroad  Company  incorporated  by  special  act  may,  if  it 
so  elects,  proceed  to  condemn  lands  under  the  general 
statute:  Cascades  R.  R.  Co.  v.  Sohns,  1  W.  T.  557. 
2.   Proceedings  and  Practice. 

Parties  may  consent  to  try  issues  as  to  whether  the  land 
is  subject  to  appropriation,  and  its  value,  together, 
though  statute  contemplates  separate  trials:  Oregon 
Cascade  R.  R.  Co.  v.  Daily,  3  Or.  1G4. 

Duties  of  jurors  on  viewing  premises,  stated:  Id. 

When  plaintiff  sues  to  condemn  sixty  feet  in  width,  can- 
not prove  and  ask  verdict  for  value  of  forty-five  feet:  Id. 

Statement  furnished  assessor  not  admissible  to  prove 
value:  Id. 

Assessment  roll  not  admissible  to  prove  value:  Id. 

Land  held  by  one  corporation  defendant,  plaintiff  corpora- 
tion cannot  show  that  defendant  holds  solely  for  mo- 
noply  and  to  prevent  competition:  Id. 

Forfeiture  by  one  corporation  cannot  be  tried  in  action  to 
condemn  by  another:  Id. 

Too  late  after  verdict  to  claim  that  jury  did  not  have  a 
full  view  of  premises:  Oregon  Cascade  R.  R.  v.  Oregon 
Steam  Nav.  Co.,  3  Or.  178. 


232  Eminent  Domain. 

Eminent  Domain  (continued). 

Defendant  was  permitted  to  open  and  close  under  certain 
pleadings:  Oregon  &  Cal.  R.  R.  Co.  v.  Barlow,  3  Or.  311. 

Money  paid  into  court  to  satisfy  judgment  under  protest 
ordered  paid  to  defendant:  Id. 

Defendant  cannot  on  same  trial  contest  right  to  condemn 
and  try  question  of  damages:  Oregon  Central  R.  R.  Co. 
V.  Wait,  3  Or.  428. 

Value  of  land  taken,  irrespective  of  improvement  thereof, 
is  the  only  damage,  when  benefits  and  damages  to  other 
lands  of  defendant  are  equal:  Id. 

Only  on  payment  into  court  of  damages  assessed  can 
court  render  judgment  condemning  the  lands,  and  no 
judgment  not  in  accordance  with-  the  statute  can  be 
given:  Oregonian  R'y  Co.  v.  Hill,  9  Or.  377;  Oregon 
R'y  Co.  v.  Bridwell,  11    Or.  282. 

Judgment  in  personam,  without  assessment  of  damages, 
cannot  be  rendered  by  default:  Id. 

Verdict  in  action  to  condemn  land  for  railroad,  what  suf- 
ficient: Oregon  R'y  Co.  v.  Bridwell,  11   Or.  282. 

Judgment  in  personam  not  permissible;  should  appropri- 
ate right  of  way  after  damages  assessed:  Id. 
3.    Compensation  and  Damages. 

Neither  railroad  nor  defendant  is  obliged  by  law  to  fence 
their  common  boundary,  and  the  expense  of  fencing  is 
not  to  be  considered  as  element  of  damages:  Oregon 
Central  R.  R.  Co.  v.  Wait,  3  Or.  91;  S.  C,  3  Id.  428. 

Value  of  land  taken,  and  amount  of  injury  in  excess  of 
benefits  resulting  from  the  construction  of  railroad,  is 
the  compensation  to  be  allowed:  Id.;  Willamette  Falls 
C.  &  L.  Co.  V.  Kelly,  3  Or.  99. 

If  plaintiff  does  not  make  all  owners  defendants,  it  is  no 
ground  for  reducing  damages:  Willamette  Falls  C.  & 
L.  Co.  V.  Kelly,  3  Or.  99. 

Water  power  taken  or  rendered  less  valuable  may  be  con- 
sidered in  estimating  damages:  Id. 

Value  at  commencement  of  the  action  is  the  amount  to 
be  paid:  Or.  &  Cal.  R.  R.  Co.  v.  Barlow,  3  Or.  311. 

Estimate  should  not  include  timber  cut  down  by  plain- 
tiff:  Id. 

Danger  from  fire  or  cost  of  removal  of  barns  may  be  con- 
eidercd:  Id. 


Equity.  233 

Eminent  Domain  (continued). 

Water  ponded  on  defendant's  land  by  improper  construc- 
tion not  to  be  considered;  otherwise,  if  result  follows 
from  proper  construction:  Id. 
Measure  of  damages  by  reason  of  opening  road:  Terwil- 
liger   V.    Multnomah    County,    6   Or.   295;   Putnam  v. 
Douglas  County,  6  Or.  328. 
Damages    and   benefits    on    opening   street:    Portland   v. 
Kamm,  5  Or.  362;  Van  Sant  v.  Portland,  G  Or.  395; 
Portland  v.  Lee  Sam,  7  Or.  397;  Portland  v.  Kamm,  10 
Or.  383. 
Tender  and  payment  into  court  is  an  admission  of  dam- 
ages to  the  amount  of  the  tender:  0.  R.  &  N.  Co.  v. 
Oregon  Real  Estate  Co.,  10  Or.  444. 
"Where  railroad  has  once  paid  a  person  afterwards  ascer- 
tained not  to  be  the  owner,  in  an  action  against  the  true 
owner,  the  latter  cannot  enhance  his  damages  by  prov- 
ing the  value  of  the  improvements  built  by  the  com- 
pany in  the  mean  time:  O.  R.  &  N.  Co.  v.  Mosier,  14 
Or.  519. 

Employers  and  Employees.     See  Master  and  Servant. 

Entry.     See  Easements;    Ejectment;   Evidence;  Judgments 
and  Decrees;  Public  Lands. 

Equalization.     See  Taxation. 

Equitable  Estoppel.     See  Estoppel. 

Equity.  See  Accounting;  Actions  and  Suits;  Appeal  and 
Error;  Boundaries;  Cloud  on  Title;  Complaints;  Cor- 
porations; Divorce;  Fraud  and  Deceit;  Fraudulent 
Conveyances;  Injunction;  Judgments  and  Decrees; 
Jurisdiction;  Liens;  Lost  Papers;  Mistake  and  Acci- 
dent; Mortgages;  Notice;  Pleading;  Practice;  Quiet- 
Tug  Title;  Reformation;  Rules  of  Court;  Specific  Per- 
formance; Trusts  and  Trustees. 

1.  Principles  and  Jurisdiction. 

2.  Pleading. 

3.  Practice. 

1.   Principles  and  Jurisdiction. 

Where  one  of  two  must  suffer  by  the  act  of  one,  it  should 

be  he  who  caused  the  injury:  Coleman  v.  Stark,  1  Or. 

115. 
Where  a  court  of  law  has  taken  jurisdiction,  equity  will 

not  interfere,  where  jurisdiction  is  concurrent,  and  there 


234  Equity. 

Equity  (continued). 

is  adequate  remedy  at  law:  Wells,  Fargo,  &  Co.  v.  Wall, 
1  Or.  295. 

Equity  will  not  relieve  from  effects  of  ignorance  of  a  fact, 
in  absence  of  mistake,  accident,  or  fraud:  Fahie  v. 
Pressey,  2  Or.  23. 

Equity  will  entertain  jurisdiction  in  absence  of  remedy 
at  law  to  set  aside  void  tax  deed,  or  to  enjoin  a  void 
sale  for  taxes:  King  v.  Portland,  2  Or.  14G. 

Equity  will  not  review  or  correct  the  proceedings  of  direc- 
tors of  a  corporation  on  the  ground  of  fraud,  unless  there 
be  ground  for  the  displacement  of  the  officers,  or  for  a 
final  winding  up  of  the  affairs  of  the  corporation: 
Hedges  v.  Paquett,  3  Or.  77. 

Bills  for  review  are  original  suits  under  the  Code,  and 
defense  is  made  by  answer:  White  v.  Allen,  3  Or.  103. 

To  set  aside  a  voidable  deed,  application  should  be  ad- 
dressed to  equity  side  of  the  court:  King  v.  Peoples' 
Trans.  Co.,  3  Or.  189. 

A  grantor  who  seeks  to  show  his  own  deed  is  voidable  has 
no  standing  in  equity  while  he  retains  the  purchase- 
price:   Id. 

Not  all  facts  that  constitute  defense  will  afford  affirmative 
equitable  relief:  Kennard  v.  Sax,  3  Or.  263. 

Bills  for  review  are  entertained  by  virtue  of  the  original 
not  appellate  jurisdiction  of  the  Circuit  Court:  Id. 

Where  judgment  erroneous,  but  debt  justly  owing,  equity 
will  not  interfere:  Id. 

Except  for  error  appearing  of  record,  bills  for  review  are 
not  entertained  without  a  showing  of  excuse  for  not 
having  presented  the  facts  for  determination  on  former 
trial:    Norton  v.  Harding,  3  Or.  361. 

When  equity  relieves  from  contract  for  sale  of  land  where 
amount  falls  short:  Failing  v.  Osborne,  3  Or.  498. 

By  dispensing  with  the  classification  of  bills,  the  Code 
does  not  take  away  any  cause  of  suit:  Ileatherly  v. 
Iladley  and  Owen,  4  Or.  1. 

Having  obtained  jurisdiction  for  one  purpose,  equity  will 
hold  it  for  all  purposes  connected  with  the  transaction: 
Id.;  Howe  v.  Taylor,  6  Or.  284;  Phipps  v.  Kelly,  12 
Or.  213. 

To  ascertain  where  a  lost,  stake  was  set  may  be  deter- 


Eqlity.  235 

Equity  (continued). 

mined  in  law  as  well  as  in  equity:  Lewis  v.  Lewis,  4 
Or.  177. 

Equity  alone  can  protect  the  franchise  of  a  road  company 
from  proceedings  to  lay  out  county  road:  C.  &  G.  Road 
Co.  V.  Douglas  Co.,  5  Or.  280. 

Equity  can,  and  under   statute  must,  declare  forfeiture 

for  usury:  Chapman  v.  State,  5  Or.  432. 
■  Will  make  contract  operate  according  to  the  intent,  but 
will  not  reconstruct  void  contract:  Evarts  v.  Steger,  6 
Or.  55. 

Jurisdiction  to  establish  lost  instruments  is  not  taken 
away  by  statute  allowing  secondary  evidence  of  the 
contents:  Howe  v.  Taylor,  6  Or.  284. 

Having  acquired  jurisdiction  to  establish  lost  official 
bond,  equity  will  administer  complete  relief,  and  decree 
payment  by  sureties  of  their  liability  thereon:  Id. 

Equity  will  entertain  jurisdiction  of  sale  fraudulent  for 
deceit,  although  an  action  for  deceit  would  lie:  Smith 
V.  Griswold,  6  Or.  440. 

A  court  of  equity  is  the  proper  forum  for  administering 
relief  against  stockholders  in  favor  of  creditors  of  a  cor- 
poration: Bush  V.  Cartwright,  7  Or.  329. 

Suit  may  be  maintained  by  wife  to  recover  her  one  third 
of  property  owned  by  husband  at  time  of  divorce,  un- 
known to  her  at  that  time:  Weiss  v.  Bethel,  8  Or.  522. 

Equity  will  not  set  aside  a  sale  under  a  judgment  void 
on  its  face,  where  there  is  a  remedy  by  ejectment:  Far- 
ris  v.  Hayes,  9  Or.  81. 

Creditor's  bill  on  the  ground  of  fraud,  to  set  aside  fraudu- 
lent decree  and  sale  where  plaintiff  has  acquired  a  lien 
hy  attachment,  will  give  equity  jurisdiction,  though 
there  may  be  a  remedy  at  law,  and  though  no  execu- 
tion is  issued:  Bremer  &  Co.  v.  Fleckenstein  and  Mayer, 
9  Or.  26G. 

Equity  will  assume  jurisdiction  to  complete  a  dissolution 
and  accounting  between  partners,  partly  effected,  but 
■  not  fully  accomplished:  Gleason  v.  Van  Aerman,  9  Or. 
343. 

Relief  against  a  trespass,  remediable  by  damages  at  law, 
cannot  be  had  in  equity:  Weiss  v.  Jackson  Co.,  9  Or. 
470;  Smith  v.  Gardner,  12  Or.  221. 


236  Equity. 

Equity  (continued). 

Equity  jurisdiction  and  remedies  in  case  of  actual  or  con- 
st.r active  fraud:  Shively  v.  Parker,  9  Or.  500. 

Objection  that  plaintiff  has  a  remedy  at  law  is  waived  by 
pleading  to  the  merits  without  such  defense:  Kitcher- 
side  V.  Myers,  10  Or.  21;  Baker  v.  Woodward,  12  Or.  3. 

Homestead  claimant  is  entitled  to  relief  in  equity  against 
one  who  keeps  him  from  entering,  without  title:  Id. 

Remedy  for  damage  by  injunction  must  be  found  at  law, 
not  in  equity:  Ruble  v.  Coyote  G.  &  S.  M.  Co.,  10  Or. 
39. 

Tax-payer  is  entitled  to  sue  in  equity  to  prevent  fraudu- 
lent or  illegal  use  of  county  funds:  Carman  v.  Wood- 
ruff, 10  Or.  133;  White  v.  Commissioners,  13  Or.  317. 

When  equity  will  interpose  to  relieve  a  defendant  from  a 
judgment  he  has  allowed  to  be  taken  against  him  at 
law:  0.  R.  &  N.  Co.  v.  Gates,  10  Or.  514. 

Proceeding  supplemental  to  execution,  being  at  law,  cannot 
embrace  right  to  foreclose:  Knowles  v.  Herbert,  11  Or.  54. 

Distinctions  between  actions  at  law  and  suits  in  equity  has 
not  been  abolished  by  Code  in  Oregon:  Burrage  v.  B.  G. 
&Q.M.  Co.,  12  Or.  169. 

Where  the  right  is  cognizable  and  enforceable  in  a  court  of 
law,  resort  must  be  had  there  rather  than  in  equity: 
Phipps  V.  Kelly,  12  Or.  213. 

But  when  equity  originally  had  jurisdiction  of  a  class  of 
cases,  its  jurisdiction  is  not  lost  by  statute  affording  a 
legal  remedy  in  such  cases:  Id. 

The  act  of  1878  (sec.  2874,  Hill's  A.  L.),  providing  for  en- 
forcing a  liability  against  a  wife  for  family  expenses, 
does  not  oust  the  original  jurisdiction  of  equity  over 
married  women's  rights  of  property:  Id. 

Court  cannot  determine  questions  of  principal  and  surety 
between  defendants  jointly  liable  in  a  foreclosure  suit, 
where  not  necessary  to  the  foreclosure:  Hovenden  v. 
Knott,  12  Or.  267. 

When  creditor's  bill  may  be  filed  to  restrain  or  set  aside 
fraudulent  assignment  and  misapplication  of  funds  of 
assignor  for  benefit  of  creditors:  Dawson  v.  Coffey,  12 
Or.  513. 

Mistake  in  a  deed  must  be  relieved  in  equity,  and  cannot 
be  shown  by  parol  as  a  defense  in  ejectment  when  such 


Equity.  237 

Equity  (continued). 

proof  varies  the  terms  of  the  deed:  Holcomb  v.  Mooney, 
13  Or.  503. 

Bills  of  review  are  abolished  by  the  Code,  but  the  same 
remedy  exists,  and  a  suit  to  set  aside  a  decree  can  be 
maintained  on  the  same  grounds  which  formerly  would 
have  supported  such  bill:  Crews  v.  Richards,  14  Or.  442. 

But  such  suit  cannot  be  maintained  where  the  grounds  re- 
lied upon  were  known  and  could  have  been  used  in  the 
former  suit:  Id. 

Attachment  affords  sufficient  lien  to  enable  equity  to  take 
jurisdiction  to  set  aside  a  fraudulent  conveyance:  Daw- 
son V.  Sims,  14  Or.  561. 

Equity  will  interfere  for  the  protection  of  a  person  of  weak 
mind  who  has  by  undue  influence  been  induced  to  enter 
into  an  inequitable  contract:  Ward  v.  Buckley,  1  W.  T. 
279. 

Act  of  the  legislative  assembly  destroying  distinctions  be- 
tween law  and  equity,  and  prescribing  a  single  form  of 
action  to  establish  and  enforce  private  rights,  is  in  viola- 
tion of  the  Organic  Act,  and  void:  Stevens  v.  Baker,  1 
W.  T.  315. 

In  the  absence  of  a  local  equity  system,  the  equity  rules 
of  the  United  States  Supreme  Court  are  binding  on  the 
territorial  courts  in  chancery  cases:  Id. 

Issuance  of  patent  is  such  a  final  decision  of  the  executive 
department  of  the  government  respecting  public  lands 
as  will  give  the  courts  jurisdiction,  at  suit  of  person  seek- 
ing to  set  the  patent  aside:  Shockley  v.  Brown,  1  W.  T. 
4G3. 

The  distinctions  between  actions  at  law  and  suits  in  equity, 
ia- matters  of  procedure,  under  the  several  codes  suc- 
cessively adopted  in  Washington  Territory:  Garrison  v. 
Cheeney,  1  W.  T.  489. 

City,  in  prosecuting  a  suit  to  abate  nuisance,  acts  for  the 
public,  and  is  entitled  to  proceed  in  equity  in  the  first 
instance:  Moore  v.  Walla  Walla,  2  W.  T.  184. 

Failure  of  defendants  to  demand  jury  trial  waives  their 
right  to  object  that  plaintiff  had  a  remedy  at  law:  Id. 

Proceedings  supplemental  to  execution,  though  attached 
to  law  case,  are  of  equitable  cognizance :  Murne  v.  Schwa- 
bacher  Bros.  &  Co.,  2  W.  T.  191. 


238  Equity. 

Equity  (continued). 

Court  of  equity  will  grant  no  relief  to  a  party  claiming  un- 
der a  sham  decree:  Connoly  v.  Cunningham,  2  W.  T. 
242. 

A  suit  in  equity  may  be  maintained  against  a  person  col- 
lecting money  from  a  debtor  without  authority,  if  it  be 
shown  the  debtor  is  insolvent:  McCoy  v.  Ayers,  2  W.  T. 
307. 

Court  of  equity  cannot  review  a  finding  of  fact  by  a  com- 
petent tribunal,  unless  the  finding  is  impeached  for 
fraud  or  mistake:   Sparks  v.  Brown,  2  W.  T.  426. 

So  in  the  absence  of  fraud  or  mistake,  a  court  of  equity 
will  not  review  decision  of  secretary  of  interior  upon  a 
question  of  mixed  law  and  fact:  Id. 

Even  when  an  equitable  defense  is  rnade  in  action  at  law, 
jurisdiction  is  determined  by  presuming  everything  of 
common-law  cognizance,  until  the  necessity  of  equity 
jurisdiction  appears:  Id. 
2.   Pleading. 

Misjoinder  and  multifariousness  are  grounds  for  demurrer: 
White  v.  Delschneider,  1  Or.  254. 

If  matter  excepted  to  for  impertinence  be  responsive  to 
bill,  exception  not  allowed:  Lownsdale  v.  Portland,  1 
Or.  881. 

Equitable  defense  could  be  pleaded  in  action  at  law  under 
section  93  of  Code  as  amended:  Delay  v.  Chapman,  2 
Or.  242. 

Essential  to  equitable  defense  that  there  be  no  legal  de- 
fense:  White  V.  Allen,  3  Or.  103. 

Material  facts  that  did  not  exist  at  the  commencement  of 
suit  may  be  set  up  by  supplementary  answer:  Id. 

When  answer  sets  up  complete  legal  defense,  cross-bill  in 
equity  under  section  377  of  the  Civil  Code  (sec.  381, 
Hill's  A.  L.),  cannot  be  filed:  Dolph  v.  Barney,  5  Or. 
191;  Scheland  v.  Erpelding,  6  Or.  258. 

Facts  forming  but  a  partial  defense  to  the  action,  requir- 
ing interposition  of  equity,  if  defendant  has  no  remedy 
at  law,  may  be  set  up  bv  cross-bill:  Hatcher  v.  Briggs, 
6  Or.  31. 

Failure  to  plead  equitable  defense  by  cross-bill  does  not 
prevent  defendant  from  suing  thereon  as  an  original 
bill:   Hill  v.  Cooper,  6. Or.  181. 


Equity.  239 

Equity  (continued). 

Defendant  in  divorce  suit  may  file  cross-bill,  and  demand 
and  receive  aflirmative  relief:  Dodd  v.  Dodd,  14  Or.  338. 

Bills  for  review  are  original  suits  under  Code,  and  defense 
is  made  by  answer:   White  v.  Allen,  3  Or.  103. 
3.   Practice. 

Voluntary  appearance  of  defendant  does  not  waive  time 
to  plead,  but  defects  of  service  and  informalities  in  the 
process  only:   Harker  v.  Fahie,  2  Or.  8^. 

Amendment  of  Code  allowing  equitable  defenses  in  ac- 
tions at  law  is  valid,  and  a  radical  change:  Delay  v. 
Chapman,  2  Or.  242. 

Issues  of  fraud  and  mismanagement  of  directors  of  cor- 
poration submitted  to  a  jury:  Hedges  v.  Paquett,  3  Or. 
77. 

Defective  decree  may  be  reformed  under  a  prayer  for  gen- 
eral relief:  White  v.  Allen,  3  Or.  103. 

An  answer  in  equity  case  which  denies  plaintiff's  whole 
cause  of  suit,  and  sets  up  a  counterclaim,  is  not  such  a 
pleading  of  counterclaim  as  to  prevent  nonsuit:  Dove 
V.  Hayden,  5  Or.  500. 

Question  of  fact  may  be  submitted  to  a  jury,  and  their 
verdict  read  in  evidence  at  the  trial:  Swegle  v.  Wells, 
7  Or.  222. 

The  general  equity  practice  must  be  looked  to  to  deter- 
mine when  a  jury  is  proper:  Id. 

If  the  facts  are  strongly  controverted  and  the  evidence 
nearly  equally  balanced,  or  if  the  difficulty  upon  the 
facts  is  too  great  to  be  removed  by  a  master,  an  issue 
may  be  tried  by  jury:  Id. 

The  verdict  is  not  conclusive  on  appeal,  but  will  not  be 
disregarded  unless  clearly  contrary  to  the  evidence: 
De  Lashmutt  v.  Everson,  7  Or.  212;  Swegle  v.  Wells, 
7  Or.  222. 

On  proper  showing,  relief  may  be  granted,  whether  prayed 
for  or  not:   Gilmore  v.  Gilmore,  7  Or.  374. 

Evidence  of  collusion  cannot  be  received  after  an  order 
allowing  interpleader  is  made:  Fahie  v.  Lindsay,  8  Or. 
474. 

Practice  in  foreclosure  suit  where  several  defendants, 
claiming  inconsistent  rights,  answer  each  other:  Ladd 
and  Tilton  v.  Mason,  10  Or.  308. 


240  Equity. 

Equity  (continued). 

Amendment  of  1885  (sec.  397,  Hill's  A.  L.),  regarding 
manner  of  taking  testimony  and  appeals  in  equity 
cases,  applies  only  to  ordinary  suits,  not  to  collateral 
and  special  proceedings:   Martin  v.  Martin,  14  Or.  165. 

Effect  of  said  amendment  of  1885,  respecting  trial  of 
equity  cases,  is  to  repeal  the  sections  of  the  Code 
providing  for  taking  depositions  after  issue  joined,  and 
also  provisions  authorizing  employment  of  short-hand 
reporter:  Marks  &  Co.  v.  Crow,  14  Or.  382. 

And  it  seems  that  such  amendment  prevents  taking  depo- 
sitions de  bene  esse,  excepting  where  reference  has  been 
had  to  find  the  facts,  or  to  find  the  facts  and  law:  Id. 

Where  statute  regulating  proceedings  in  a  suit  is  enacted, 
altering  the  mode  of  procedure,  it  will  not  affect  pro- 
ceedings already  had  in  pending  cases:  Id. 

So  depositions  taken  before  such  amendment  took  effect 
may  be  considered  after  the  sections  providing  for  tak- 
ing depositions  are  repealed:  Id. 

Equity  practice  and  procedure,  and  distinctions  between 
suits  in  equity  and  actions  at  law,  under  the  several 
codes,  successively  adopted  in  Washington  Territory: 
Garrison  v.  Cheeney,  1  W.  T.  489. 
Erasures.     See  Alteration  of  Instruments. 

In  judgment,  court  will  not  presume  prejudicial  to  ac- 
cused in  criminal  case:  Jennings  v.  State,  1  Or.  290. 

In  written  instrument  may  be  explained  by  parol,  and 
such  evidence  does  not  contradict  the  writing:  Wren  v. 
Fargo,  2  Or.  19. 

In  record,  where  record  is  used  to  contradict  certified  copy, 
must  be  fully  explained:  Dolph  v.  Barney,  5  Or.  192. 

It  should  be  proved  that  the  certified  copy  was  not  a  true 
copy  when  made:  Id. 
Error.     Sec  Appeal  and  Error. 

Estates  of  Decedents.     See  Administration;  Administra- 
tors and  Executors;  Heirs;  Legacies;  Wills. 
Estoppel. 

Kecital  in  a  deed  of  the  existence  of  a  mortgage  estops 
grantee  from  denying  the  same:  Holmes  v.  Ferguson, 
1  Or.  220. 

Parties  and  privies  are  bound  by  recitals  of  deed  through 
which  they  claim  title;  Id. 


Estoppel.  241 

Estoppel  (continued). 

Parties  are  bound  by  recitals  in  their  deed;  and  this  ap- 
plies to  married  women:  Graham  v.  Meek,  1  Or.  325. 

A  decree  cannot  be  pleaded  as  an  estoppel  against  one  not 
a  party  or  a  privy:  Lownsdale  v.  Portland,  1  Or.  381. 

Dedication  or  release  without  covenants,  by  mere  occu- 
pant of  public  land  in  Oregon,  prior  to  1850,  does  not 
bind:  Lownsdale  v.  Portland,  1  Or.  397. 

City  estopped  l)y  adopting  a  map  as  official,  which  does 
not  show  the  disputed  strip  as  public  property:  Id. 

"Wife  not  estopped  to  claim  her  land  because  of  silence 
during  suit  against  husband  to  foreclose  his  mortgage 
thereon,  in  which  suit  she  is  not  made  a  party:  Fahie 
V.  Pressey,  2  Or.  23. 

Quitclaim  deed  does  not  estop  grantee  from  showing  his 
grantor  had  no  estate  to  which  dower  attached:  Far- 
num  V.  Loomis,  2  Or.  29. 

Party  otherwise  estopped  may  avail  himself  of  the  truth, 
when  same  fact  is  shown  by  adversary's  pleadings:  Lee 
V.  Summers,  2  Or.  260. 

One  cannot  dispute  a  title  which  he  sets  up,  and  upon 
which  he  bases  all  his  rights:  Eagle  Woolen  Mills  Co. 
V.  Monteith,  2  Or.  277. 

Making  or  agreeing  tx)  make  quitclaim  deed  of  the  gran- 
tor's title,  derived  from  a  certain  source,  does  not  estop 
maker  from  buying,  subsequently,  an  outstanding  title, 
and  holding  same  land:  Shively  v.  Welch,  2  Or.  288. 

Grantor  seeking  to  show  his  own  deed  voidable  has  no 
standing  while  retaining  purchase-money:  Kelly  v. 
People's  Trans.  Co.,  3  Or.  189. 

Recital  of  due  service  of  summons  in  decree  does  not  estop 
when  return  shows  the  niode  of  service,  and  the  same  is 
insufficient:  Heatherly  v.  Hadley  and  Owen,  4  Or.  1. 

A  recital  in  a  decree  that  "  notice  has  been  given  in  due 
form  of  law,"  will  not  preclude  a  party  from  denying 
the  jurisdiction  of  the  court  in  a  suit  brought  to  reform 
the  decree:  Id. 

If  seisin  or  possession  of  a  particular  estate  is  affirmed 
in  a  deed,  expressly  or  by  implication,  the  grantor  is 
estopped  to  deny:  Taggart  v.  Risley,  4  Or.  235. 

Estoppel  by  deed;  nature  and  extent  of  the  rule:  Id.; 
Bayley  v.  McCoy,  8  Or.  259. 

Ob.  Diq.— 16 


242  Estoppel. 

Estoppel  (continued). 

Stockholder  present  and  assenting  to  by-law  adopted  at 
stockholders'  meeting  is  estopped  from  questioning  the 
legality  of  assessments  on  the  stock  made  by  such  by- 
law: Willamette  Freighting  Co.  v.  Stannus,  4  Or.  261. 

In  ejectment,  where  both  parties  claim  title  from  same 
source,  neither  can  impugn  it:  Dolph  v.  Barney,  5  Or. 
191. 

Minor  arriving  at  age,  and  receiving  proceeds  of  guar- 
dian's sale  on  partition,  is  estopped  to  deny  the  validity 
of  the  sale,  and  is  presumed  to  ratify  the  same:  Brazee 
V.  Schofield,  2  W.  T.  209. 

A  party  who  has  deliberately,  by  his  declaration,  induced 
a  party  to  believe  a  particular  thing  true,  cannot,  in 
subsequent  litigation,  falsify  it,  under  section  765,  sub- 
division 4,  of  the  Code  (sec.  775,  Hill's  A.  L.):  Col- 
lins V.  Delashmutt,  6  Or.  54. 

Estoppel  must  be  pleaded  to  be  taken  advantage  of:  Rugh 
V.  Ottenheimer,  6  Or.  231;  Remillard  v.  Prescott,  8 
Or.  37. 

Grantor  and  his  privies  are  estopped  to  deny  title  to  which 
they  have  given  general  warranty:  Wilson  v.  McEwan, 
7  Or.  87. 

Holder  of  negotiable  paper  purchased  with  notice  of 
equities  cannot  urge  as  estoppel  against  maker,  who 
had  no  knowledge  of  the  fraud  at  the  time,  the  latter 
before  the  purchase  told  him  he  had  no  objection  to  his 
buying  the  note  from  the  payee:  De  Lashmutt  v.  Ever- 
son,  7  Or.  212. 

Suflicient  negligence  shown  in  this  case,  in  executing  quit- 
claim deed,  to  estop  grantor  from  asserting  after-ac- 
quired title:  Dorris  v.  Smith,  7  Or.  267. 

Mortgagor  in  possession  cannot  claim  his  possession  unlaw- 
ful, when  sued  for  rents  and  profits:  Renshaw  v.  Taylor, 
7  Or.  315. 

Party  is  not  precluded  from  asserting  his  title  by  his  acts 
in  causing  a  Btreet  improvement  affecting  the  property 
to  be  paid  by  the  other  party,  where  the  acts  are  not 
relied  on  by  the  latter  in  making  such  payments:  Par- 
ker V.  Taylor,  7  Or.  435. 

Acceptance  by  wife  of  money  paid  by  husband  in  lieu  of 
her  equitable  interest  in  his  laud,  pursuant  to  decree 


Estoppel.  243 

Estoppel  (continued). 

granting  her  divorce,  estops  her  from  making  further 
claim  to  the  land:  Brooks  v.  Ankeny,  7  Or.  4G1. 

The  rule  that  a  tenant  cannot  dispute  his  landlord's  title 
binds  the  sucoessors  of  the  first  tenant:  Jones  v.  Dove, 
7  Or.  467. 

All  stockholders,  and  the  corporation,  arc  chargeable  with 
notice  of  the  conditions  of  subscriptions  to  stock,  and 
there  is  no  estoppel  between  them:  Coyote  G.  &  S.  M. 
Co.  V.  Ruble,  8  Or.  284. 

Mere  silence  works  no  estoppel,  unless  it  becomes  fraud: 
Hugell  V.  Kinney,  9  Or.  250. 

Knowledge  of  the  publication  of  an  offer  of  reward  over 
defendants'  signature,  unauthorized  by  them,  does  not 
estop  them  by  their  mere  silence:  Id. 

Quitclaim  of  dower  by  wife  in  husband's  deed  does  not 
operate  to  estop  her  from  claiming  an  existing  or  after- 
acquired  fee-simple  interest:  Burston  v.  Jackson,  9  Or. 
275. 

Mere  expressions  of  opinion  of  location  of  boundary,  made 
by  former  owner  without  fraud,  do  not  estop:  Goddard 
v.  Parker,  10  Or.  102. 

No  estoppel  arises  by  allowing  a  person  to  erect  improve- 
ments where  he  is  given  notice  promptly:  Id. 

The  burden  is  on  the  one  asserting  estoppel  as  a  defense 
to  prove  that  the  land  was  purchased  with  reference  to 
and  in  rehance  on  a  certain  map  as  claimed,  showing 
boundaries  different  from  those  set  up:  Id. 

Party  accepting  itemized  account  demanded,  and  not  ob- 
jecting until  trial,  to  the  form  of  verification,  is  estopped: 
Robbins  v.  Benson,  11  Or.  514. 

Judgment  by  default  operates  by  way  of  estoppel,  as  if 
there  had  been  a  verdict  for  plaintiff:  Neil  v.  Tolman, 
12  Or.  289. 

Abutting  lot-owner,  encouraging  by  acts  indicating  con- 
sent, the  improvement  of  a  street  by  a  city,  is  estopped 
thereafter  to  question  the  legality  of  the  improvement: 
Hawthorne  v.  East  Portland,  13  Or.  271. 

Plea  of  estoppel  neither  admits  nor  denies  the  facts  alleged 
in  the  complaint,  but  denies  plaintiff's  right  to  allege 
them:  Page  &  Co.  v.  Smith,  13  Or.  410. 

To  work  estoppel,  the  party  must  have  deliberately  and 


M4  Estoppel. 

Estoppel  (continued). 

intentionally  misled  another  to  believe  a  thing  true  and 
to  act  upon  it:  Id. 

Lot-owner  having  granted  the  right  of  building  a  wharf 
in  front  of  his  lot  on  tide-water,  his  subsequent  grantee 
of  the  lot  is  estopped  by  his  deed  from  objecting  to  its 
maintenance:  McCann  v.  Oregon  R'y  etc.  Co.,  13  Or. 
455. 

City  cannot  take  advantage  of  not  having  approved  or 
disapproved  of  the  work  done  under  contract,  as  is  pro- 
vided by  the  contract  to  be  done  before  payment  is  to 
be  made,  when  six  months  have  elapsed  before  suit,  to 
avoid  payment  of  a  just  claim:  N.  P.  L.  &  M.  Co.  v. 
East  Portland,  14  Or.  3. 

University  corporation,  having  availed  itself  of  the  services 
of  a  military  instructor,  cannot  defend,  in  an  action  for 
compensation,  on  the  ground  that  it  never  passed  an 
ordinance  employing  him:  Tyler  v.  T.  of  T.  A.  &  P.  U., 
14  Or.  485. 

Establishment,  by  a  party,  of  surveys  and  boundaries  to 
his  lands,  estops  him  from  resisting  a  tax  for  want  of 
identification  of  the  property,  founded  on  such  descrip- 
tion: Puget  Sound  Agricultural  Co.  v.  Pierce  County, 
1  W.  T.  159. 

Owners  of  lots  abutting  alley,  who  petitioned  city  trus- 
tees to  vacate  alley  and  replut  adjoining  block,  are  es; 
topped  from  questioning  rights  so  acquired:  Burmeister 
V.  Howard,  1  W.  T.  207. 

Defendant  in  criminal  case  and  his  counsel,  having  con- 
sented to  separation  of  the  jury,  should  be  estopped  from 
objecting  thereto  on  appeal:  liartigan  v.  Territory,  1 
W.  T.  447. 

By  accepting  the  fruits  of  a  decree,  party  is  estopped  from 
appealing  therefrom:  Lyons  v.  Bain,  1  W.  T.  482. 

Plaintiff  in  action  to  recover  possession  of  real  property  is 
not  estopped  by  his  silence  or  conduct,  wben  thereby 
he  neither  induced  the  defendant  to  go  into  or  remain 
in  possession:  Bullene  v.  Garrison,  1  W.  T.  587. 

Grantee  of  city  lot,  by  deed  referring  to  recorded  plat,  is 
estopped  from  denying  existence  of  abutting  street 
shown  on  such  plat,  and  he  cannot  set  U])  title  to  such 
street  acquired  before  platting,  or  claim  by  adverse 
possession:  Moore  v.  Walla  Walla,  2  W.  T.  184. 


Evidence.  245 

Estoppel  (continued). 

Claimant  under  patent,  issued  to  widow  and  heirs  of  de- 
ceased donation  claimant,  is  conclusively  estopped  from 
denying  that  the  widow  and  heirs  acquired  title  under 
that  act:  2  W.  T.  209. 
"What  is  necessary  to  create  account  stated  by  way  of  es- 
toppel: Baxter  v.  Waite,  2  W.  T.  228. 
Estrays. 

Definition;  animal  on  the  range  where  raised  is  not  an 

estray:  Shepherd  v.  Plawley,  4  Or.  206. 
Animal  must  be  breachy  or  vicious  to  be  taken  up  in 
August  or  September  as  an  estray:  Id. 
Evidence.  See  Adverse  Possession;  Agency;  Boundaries; 
Corporations;  Criminal  Law;  Dedication;  Deeds;  Depo- 
sitions; Ejectment;  Fraud;  Fraudulent  Conveyances; 
Homicide;  Insanity;  Partnership;  Payment;  Pleading; 
Practice;  Seduction;  Suretyship;  Trusts;  Variance; 
Witnesses. 

1.  Judicial  Notice. 

2.  Presumption's. 

3.  Burden  of  Proof. 

4.  Best  Evidence. 

5.  Records  as  E\idence. 

6.  Documentary  Evidence. 

7.  Books  Kept  in  the  Course  of  Business. 

8.  Parol  Evidence. 

9.  Opinion  Evidence. 

10.  Character  Evidence. 

11.  Res  Gest^. 

12.  Declarations  and  Admissions. 

13.  Dying  Declarations. 

14.  Confessions. 

15.  Repute. 

16.  Perpetuation  of  Evidence. 

17.  Generally  and  Relevancy. 
1.   Judicial  Notice. 

Where  officer  taking  affidavit,  omitted  venue  therein,  but 
resided  in  the  district  of  the  court,  his  authority  recog- 
nized: Dennison  v.  Story,  1  Or.  272. 

Courts  take  notice  of  laws  by  which  school  superintend- 
ents sell  school  lands  to  individuals:  Dolph  v.  Barney, 
5  Or.  192. 


246  Evidence. 

Evidence  (continued). 

Courts  do  not  take  judicial  knowledge  of  the  laws  of  for- 
eign countries;  they  must  be  proved  as  facts:  State  v. 
Moy  Looke,  7  Or.  54, 

Nor  of  a  local  custom  to  appropriate  water  flowing  in 
streams:  Lewis  v.  McClure,  8  Or.  273. 

Court  takes  judicial  notice  of  navigability  of  streams,  and 
also  legal  subdivision  of  public  lands  and  governinent 
surveys:  Shaw  v.  Oswego  Iron  Co.,  10  Or.  371. 

The  court  takes  notice  that  the  Tualatin  River  is  not  a 
na\agable  stream,  and  that  the  United  States  has  sur- 
veyed and  sold  the  bed  of  that  river  by  the  acre  as 
though  it  was  dry  land:  Id. 

That  a  general  war  between  Indian  tribes  was  waging  at 
a  certain  time:  Yelm  Jim  v.  Territory,.  1  \V.  T.  63. 

That  the  city  of  Seattle,  mentioned  in  the  venue  of  an  in- 
dictment, is  in  King  County:  Schilling  v.  Territory,  2 
W.  T.  283. 
2.   Presumptions. 

Where  officer  is  known,  court  presumes  he  acted  within 
his  jurisdiction:  Dennison  v.  Story,  1  Or.  272. 

Where  paper  among  the  records  of  the  case  was  indorsed 
"  F.  S.  Holland,"  it  is  presumed  F.  S.  Holland  is  the 
clerk  of  the  court:  Carothers  v.  Wheeler,  1  Or.  196. 

Dedication  of  land  to  public  uses  is  not  presumed  against 
the  owner,  but  must  be  clearly  proved:  LownsdaM  v. 
Portland,  1  Or.  397. 

Where  return  showed  service  in  Douglas  County,  and  was 
signed  "  sheriff,"  it  was  presumed  that  the  person  so 
signing  was  sheriff  of  that  county:  Carland  v.  Heine- 
borg,  2  Or.  75. 

Note  in  possession  of  makers  presumed  paid;  disputable 
presumption:  Hedges  v.  Strong,  3  Or.  18, 

The  voluntary  or  intentional  use  of  weapon  calculated  to 
take  life  raises  presumption  of  malice:  State  v.  Bertrand, 
3  Or.  61. 

That  the  consideration  expressed  in  a  deed  is  the  true 
price  may  he  rebutted:  Stark  v.  Olney,  3  Or.  88. 

Every  intendment  in  favor  of  judgment  of  court  of  com- 
petent jurisdiction:  Groslouis  v.  Northcut,  3  Or.  394; 
Fulton  V.  Earhart,  4  Or.  61;  Tustin  v.  Gaunt,  4  Or.  305. 


Evidence.  247 

Evidence  (continued). 

After  general  verdict  for  plaintiff,  every  material  allega- 
tion in  complaint  is  presumed  found  true:  Torrence  v. 
Strong,  4  Or.  39. 

Judgment  creditor  presumed  to  have  lost  his  debt,  when 
sheriff  has  failed  to  levy  or  make  return:  Moore  v. 
Floyd,  4  Or.  101. 

State  treasurer  is  presumed  to  know  what  appropriations 
have  been  made:  Brown  v.  Flcischner,  4  Or.  132. 

It  is  presumed  that  every  written  contract  contains  all 
its  terms;  mistake  is  not  presumed:  Evarts  v.  Steger, 
5  Or.  147. 

That  officer  is  regularly  appointed,  and  that  his  duty  is 
regularly  performed:  Dolph  v.  Barney,  5  Or.  192. 

Though  the  presumption  of  innocence  is  preferred  rather 
than  the  presumption  of  life  when  the  two  conflict,  the 
question  should  be  determined  by  the  jury,  where  the 
legality  of  a  marriage  was  in  issue,from  all  the  evidence: 
Murray  v.  Murray,  6  Or.  17. 

On  application  for  leave  to  issue  execution  on  dormant 
judgment,  f;ame  presumption  in  favor  of  the  judgment 
exists  as  on  collateral  attack:  Strong  v.  Barnhart,  6 
Or.  93. 

Presumed  that  service  was  made  in  the  county  of  the 
officer  making  the  return:  Roy  v.  Horsley,  6  Or.  270. 

That  the  attorney  served  was  a  resident  of  the  county 
where  he  was  served  and  practicing:  Id. 

When  a  transaction  is  capable  of  construction  consistent 
with  good  faith,  fraud  is  not  presumed:  Hurford  v. 
Harned,  6  Or.  362. 

Probate  court  of  the  territory  was  of  limited  and  inferior 
jurisdiction,  and  no  presumption  exists  in  favor  of  its 
judgments:  Farley  v.  Parker,  6  Or.  105. 

The  presumption  in  favor  of  the  regularity  of  the  proceed- 
ings, provided  by  charter  of  Portland,  in  improving 
streets,  applies  only  after  jurisdiction  is  obtained:  Van 
Sant  V.  Portland,  6  Or.  395;  N.  P.  T.  Co.  v.  Portland,  14 
Or.  24. 

Retention  of  chattels  by  vendor  after  sale  creates  a  dis- 
putable presumption  of  fraud  as  against  creditors:  Mc- 
Cully  V.  Swackhamer,  6  Or.  438. 

On  proof  of  due  execution  of  will,  it  is  presumed  to  ex- 


248  Evidence. 

Evidence  (continued). 

press  testator's  unrestrained  and  uninfluenced  intention: 
Greenwood  v.  Cliue,  7  Or.  17. 

Giving  of  promissory  note  is  prima  facie  evidence  of  ac- 
counting and  settlement:  Matasce  v.  Hughes,  7  Or.  39. 

The  presumption  that  a  person  not  in  possession  of  a  note 
has  no  authority  to  receive  payment  may  be  rebutted: 
Swegle  V.  Wells,  7  Or.  222. 

Verdict  is  presumed  as  broad  as  the  issues  to  be  passed 
upon:  Reed  v.  Gentry,  7  Or.  497. 

The  presumption  is,  that  assignment,  though  preferring 
unsecured  creditors,  is  not  fraudulent:  Kruse  v.  Prindle, 
8  Or.  158. 

That  a  person  entering  under  color  of  title  enters  and  oc- 
cupies to  the  boundaries  expressed  in  his  deed:  Phil- 
lippi  V.  Thompson,  8  Or.  428. 

In  action  on  a  lost  ofhcial  undertaking,  that  the  same  was 
legally  and  duly  executed:  Howe  v.  Taylor,  9  Or.  288. 

On  appeal,  reply  is  presumed  to  have  been  filed,  where 
findings  cover  all  new  matter  in  answer:  Weissman  v. 
Russell,  10  Or.  73. 

Canceled  county  orders  in  the  possession  of  the  county 
treasurer,  duly  indorsed,  are  presumed  paid:  Portland  v. 
Besser,  10  Or.  242. 

Bills  against  a  county,  in  favor  of  a  certain  person,  in  the 
clerk's  office,  and  for  which  warrants  have  duly  issued, 
are  presumed  to  have  been  presented  and  filed  by  such 
person:  Id. 

No  presumption  of  guilt  from  the  fact  of  taking  goods,  if 
they  were  taken  believing  them  lost  or  abandoned: 
State  V.  Swayze,  11  Or.  357. 

The  only  presumption  arising  from  the  possession  of  prop- 
erty recently  stolen  is  one  of  fact,  not  of  law:  State  v. 
Hale,  12  Or.  352. 

Statutes  of  another  state  arc  not  presumed  to  be  like  our 
"own:  Balfour  v.  Davis,  14  Or.  47. 

The  record  showing  process  to  have  been  served  by  a  coro- 
ner, the  presumption  is  that  sheriff  was  laboring  under 
the  disabilities  that  make  it  incumbent  on  coroner  to 
act  in  his  stead:  Rodolph  v.  Mayer,  1  W.  T.  133. 

In  capital  cases,  there  is  no  presumption  in  favor  of  the 
regularity  of  the  proceedings:  Shapoonmash  v.  United 
States,  1  W.  T.  188.     • 


Evidence.  249 

Evidence  (continued). 

Presumption  of  the  correctness  of  an  account  arises  from 
the  rendering  of  the  account,  and  the  absence  of  objec- 
tion thereto  within  reasonable  time:  Baxter  v.  Waite,  2 
W.  T.  228. 
3.    Burden  of  Proof. 

Is  on  shipper  to  show  value  of  goods  injured  by  carrier: 
Seller  v.  Steamship  Pacific,  1  Or.  409. 

On  defendant,  to  show  he  contracted  as  agent,  and  that 
plaintiff  had  notice:  McCall  v.  Elliott,  3  Or.  138. 

In  election  contest,  party  attacking  voter  who  has  voted 
must  show  his  disqualification:  Darragh  v.  Bird,  3  Or. 
229. 

The  plaintiff,  a  contractor,  suing  city  and  claiming  a  cer- 
tain estimate  set  forth  in  his  contract  was  a  mistake, 
has  the  burden  to  show  that  fact:  Northrop  v.  Portland, 
3  Or.  258. 

Selling  liquor  without  license,  burden  on  defendant  to 
show  that  he  is  licensed:  State  v.  Cutting,  3  Or.  260. 

On  party  attacking  record  of  County  Court  in  probate 
matters:  Russell  v.  Lewis,  3  Or.  380. 

On  sheriff,  to  show  that  plaintiff  in  execution  has  not  lost 
his  debt,  where  he  has  failed  to  levy  or  make  return: 
Moore  v.  Floyd,  4  Or.  101. 

In  action  to  recover  real  property,  where  plaintiff's  title  is 
denied,  burden  on  him  to  show  title:  Farley  v.  Parker 
and  Sutherland,  4  Or.  269. 

In  equity  case,  where  the  testimony  of  the  plaintiff  and 
defendant  is  in  conflict  and  unsupported,  the  plaintiff 
cannot  obtain  relief,  since  there  is  no  preponderance  in 
his  favor:  Smith  v.  Griswold,  6  Or.  440. 

Burden  is  on  the  plaintiff,  suing  on  note  given  as  collateral 
security  for  the  payment  of  another  note,  to  show  that 
both  are  due  and  unpaid:  Moore  v.  Miller,  7  Or.  486. 

Answer  pleading  non-performance  of  an  agreement  as 
failure  of  consideration,  and  reply  denying  non-per- 
formance, burden  is  on  plaintiff  to  show  performance: 
Briscoe  v.  Jones,  10  Or.  63. 

Burden  of  a  defense  of  estoppel  by  matter  of  record  must 
be  sustained  by  defendant:  Goddard  v.  Parker,  10  Or. 
102. 

Party  alleging  negligence  must  sustain  the  burden  of 
proving  it:  Walsh  v.  Oregon  R'y  &  Nav.  Co.,  10  Or. 
252. 


250  Evidence. 

Evidence  (continued). 

He  must  prove  that  the  injury  was  caused  by  the  negli- 
gence of  the  defendant,  and  was  not  due  to  his  own  neg- 
ligence and  want  of  care:  Id. 

Person  claiming  benefit  of  written  tender  assumes  the 
burden  of  proving  his  ability  to  pay  at  the  time:  Ladd 
and  Tilton  v.  Mason,  10  Or.  308. 

Instruction  that  burden  of  proof  was  on  the  plaintiff;  held, 
not  error  where  not  objected  to  for  its  generality,  though 
as  to  some  issues  defendant  had  the  burden:  Rogers  v. 
Wallace,  10  Or.  387. 

In  criminal  cases,  the  defense  of  insanity  must  be  proved 
by  the  defendant  beyond  a  reasonable  doubt:  State  v. 
Murray,  11  Or.  413. 

Burden  is  on  a  defendant  in  ejectment  in  a  contest  be- 
tween legal  titles  on  assailing  plaintiff's  title  for  notice 
and  want  of  consideration:  Mclntyre  v.  Kamm,  12  Or. 
253. 

Is  on  a  debtor  claiming  property  as  exempt  from  execu- 
tion, to  prove  affirmatively  all  facts  necessary  to  estab- 
lish it-  Stewart  v.  McClung,  12  Or.  431. 

Where  a  debtor  conveys  all  his  property  to  his  brother  in 
payment  of  an  alleged  debt  due  hira,  in  a  suit  by  crcvl- 
itors  to  set  aside  the  deed  the  burden  is  on  the  grantee 
to  prove  a  valuable  and  adequate  consideration:  Marks 
&  Co.  V.  Crow,  14  Or.  382. 

Failure  to  object  within  reasonable  time  to  an  account 
rendered  raises  a  presumption  of  the  correctness  of  the 
account,  and   shifts   the   burden  of  proof:    Baxter   v. 
Waitc,  2  W.  T.  228. 
4.   Best  Evidence. 

Voluntary  statement  by  witness  of  the  contents  of  a 
writing  which  is  not  in  evidence  is  cured  if  he  at  same 
time  produce  same:  White  v.  Allen,  3  Or.  103. 

The  original  and  a  record  copy  of  an  official  undertaking 
being  lost  or  stolen,  parol  evidence  of  the  contents  of 
the  copy  may  be  shown,  on  proof  of  the  correctness  of 
such  copy,  though  such  record  is  not  required  by  law 
to  be  kept:  Howe  v.  Taylor,  9  Or.  288. 

Existence  and  contents  of  a  deed  being  in  issue,  deed 
must  l)e  produced  or  non-production  accounted  for  be- 
fore parol  proof  of  such  facts  is  admissible:  Smith  v. 
Cox,  9  Or.  327. 


Evidence.  251 

Evidence  (continued). 

The  rule  is  the  same,  though  the  deed  was  between  third 
parties,  and  void  for  incapacity  of  grantor:  Id. 

Correctness  as  well  as  loss  of  original  memorandum,  be- 
fore secondary  evidence  of  its  contents  is  admissible, 
must  be  proved:  T.  &  McK.  v.  M.  &  B.,  9  Or.  405. 

Copy  taken  without  comparison  to  ascertain  its  correct- 
ness, made  by  witness  from  original  from  which  another 
person  read  off  the  items,  is  admissible  when  the  origi- 
nal cannot  be  produced:  Id. 

Certified  copy  of  a  certified  copy  is  not  admissible  as 
evidence:  Goddard  v.  Parker,  10  Or.  102. 

Oral  evidence  of  the  condition  and  appearance  of  a  hat, 
when  material,  is  admissible  without  producing  or  ac- 
counting for  absence  thereof:  Ileneky  v.  Smith,  10  Or. 
349. 

Secondary  evidence  of  the  contents  of  a  certified  copy  of 
an  answer  is  admissible  upon  proof  of  the  loss  of  the 
original,  and  of  such  copy:  Williams  v.  Gallick,  11  Or. 
337. 

On  the  loss  of  a  writing  being  proved,  a  witness  knowing 
its  contents  may  testify  in  regard  thereto:  Williams  & 
Co.  V.  Miller  &  Co.,  1  W.  T.  88. 

Deed  itself  is  highest  evidence  of  its  contents,  whether 
before  or  since  the  registration  laws,  the  execution  and 
delivery  having  been  first  duly  proved:  Skellinger  v. 
Smith,  1  W.  T.  369. 

The  record  of  a  deed  showing  it  to  bear  a  given  date  must 
yield  to  the  deed  itself,  showing  a  different  date:  Id. 
5.   Records  as  Evidence. 

Authentication  by  judge  of  record  of  any  state  must  show 
afiirmatively  he  is  the  judge,  chief  justice,  or  presiding 
m:agistrate:  Pratt  v.  King,  1  Or.  49;  contra,  Keyes  v. 
Mooney,  13  Or.  179. 

The  official  character  of  the  judge  must  appear  from  his 
own  certificate:  Id. 

Manifest  clerical  error  in  date  in  certificate  of  authenti- 
cation should  be  disregarded:  Id. 

Recorded  plat  is  not  evidence  of  the  existence  of  a  road, 
but  of  its  location:  Naylor  v.  Beeks,  1  Or.  216. 

The  express  provisions  of  the  statute  affecting  authenti- 
cation of  deed  out  of  the  state  must  be  strictly  com- 
plied with:  Knighton  v.  Smith,  1  Or.  276. 


252  Evidence. 

Evidence  (continued). 

Court  will  not  look  outside  of  justice's  docket  to  learn  that 
special  constable  was  not  duly  appointed:  White  v. 
Thompson,  3  Or.  115. 

Certificate  of  board  of  election  canvassers  is  the  record  of 
their  decision:  Warner  v.  Myers,  3  Or.  218. 

Mistake  in  dates;  error  in  record  presumed  rather  than 
that  order  of  sale  of  property  in  probate  was  made 
before  the  return  day:  Russell  v.  Lewis,  3  Or.  380. 

What  papers  belong  to  judgment  roll  in  probate;  the 
whole  record  may  be  introduced  to  deny  jurisdiction 
recited  in  part  thereof:  Gilmore  v.  Taylor,  5  Or.  89. 

County  Court  speaks  only  by  its  journal,  and  contract 
with  the  county  can  be  proved  thereby  only:  Douglas 
County  Road  Co.  v.  Abraham,  5  Or.  318. 

Foreign  judgment  regular  on  its  face,  introduced  as  evi- 
dence, ma}'  be  attacked  by  extrinsic  proof  of  fraud  or 
want  of  notice:  Murray  v.  Murray,  6  Or.  17. 

Record  is  conclusive  on  the  question  of  former  adjudica- 
tion, where  the  judgment  roll  shows  the  pending  suit 
was  included  in  the  issues:  Underwood  v.  French,  6  Or. 
66. 

Contract  of  the  county  duly  attested  can  be  impeached 
only  by  showing  it  is  not  genuine,  cfr  that  its  recitals 
are  not  true:  Road  Co.  v.  Douglas  County,  6  Or.  299. 

Record  of  a  void  judicial  proceeding  is  admissible  as  a 
private  writing  to  show  the  inducement  to  a  deed  exe- 
cuted, and  as  part  of  the  res  gestae:  Stinson  v.  Porter,  12 
Or.  444. 

Certificate  of  auditor  and  clerk  of  city  of  Portland  has  no 
effect,  excepting  to  authenticate  copies  of  records  of 
which  he  is  custodian:  N.  P.  T.  Co.  v.  Portland,  14 
Or.  24. 

Record  of  proceedings  of  city  in  laying  out  a  street  must 
show  the  facts  as  to  the  qualification  of  viewers;  and 
the  affidavit  of  the  viewers,  or  the  finding  of  the  city 
council  as  to  their  qualification,  is  insufficient:  Id. 

In  an  action  on  a  bail  bond,  the  journal  of  the  court, 
showing  default  of  the  principal,  is  admissible  in  evi- 
dence against  the  surety:  Clifford  v.  Marston,  14  Or.  426. 

Record  of  register  of  public  land-office  may  be  proved  by 
certified  copies:  Ward  v.  Moorey,  1  W.  T.  104. 


Evidence.  253 

Evidence  (continued). 

Record  of  a  deed  showing  it  to  bear  a  certain  date  must 
yield  to  the  deed  itself,  showing  a  different  date:  Skel- 
linger  v.  Smith,  1  W.  T.  369. 

Records  of  county,  showing  that  another  county  had  been 
called  upon  to  remove  from  the  former  county  paupers 
of  the  latter  kept  there,  does  not  prove  the  former's 
liability,  but  the  contrary:  King  County  v.  Collins  and 
Gordon,  1  W.  T.  469. 

Indorsement  on  a  notice  of  mechanic's  lien  of  time  of 
filing,  and  in  what  book  recorded,  is  not  evidence  of 
the  recording:  Jcwett  v.  Darlington,  1  W.  T.  601. 

Existence  of  a  judgment,  though  not  entered  in  journal, 
or  bearing  file  mark  of  clerk,  may  be  established  by 
competent  proof  after  death  of  judge  who  rendered  it: 
Eakin  V.  McCraith,  2  W.  T.  112. 
6.   Documentary  Evidence. 

Intention  of  the  writer  of  an  instrument  offered  in  evi- 
dence is  a  question  for  court,  unless  the  writing  is  a 
part  of  a  transaction,  when  the  whole  evidence  is  to  be 
submitted  to  the  jury:  Winter  and  Lattimer  v.  Norton, 
1  Or.  42. 

Certificate  under  donation  land  law  is  evidence  of  the 
facts  recited  therein:  Keith  v.  Cheeny,  1  Or.  285. 

"Received  in  good  order,"  in  shipping  receipt,  is  a  recital, 
not  an  agreement,  and  is  prima  facie  evidence  of  the 
fact  recited:  Seller  v.  Steamship  Pacific,  1  Or.  409. 

Map  relied  upon  to  prove  dedication  must  be  shown  to 
have  been  made  or  assented  to  by  donors:  Leland  v. 
Portland,  2  Or.  46. 

Patent  from  the  United  States  to  lands  held  under  the 
Donation  Act  proves  the  regularity  of  the  preliminary 
jgroceedings:  White  v.  Allen,  3  Or.  103. 

Certificate  of  board  of  election  canvassers  is  evidence  of 
their  decision:  Warner  v.  Myers,  3  Or.  218. 

Copy  made  and  certified  by  referee  as  a  true  copy,  and  re- 
turned as  an  exhibit,  will  be  sufficient  in  lieu  of  the 
original  offered  in  evidence:  Bohlman  v.  Cofiin  and 
.Carter,  4  Or.  313. 

To  prove  leasing,  a  document  not  describing  the  premises 
is  rejected  for  uncertainty:  Noyes  v.  Stauff,  5  Or.  455. 

Deed  of  insane  person  is  void,  and  may  be  impeached 


254  Evidence. 

Evidence  (continued). 

when   offered   to   prove  title   in  ejectment:    Farley  v. 
Parker,  6  Or.  105. 

A  will  is  not  admissible  to  prove  title  until  it  is  probated: 
Willamette  Co.  v.  Gordon,  6  Or.  175;  Jones  v.  Dove,  6 
Or.  188. 

Certified  copies  of  copies  of  original  papers  in  local  land- 
office,  retained  there  under  act  of  Congress  after  origi- 
nals are  sent  to  Washington,  are  properly  admissible: 
Id. 

Deed  void  as  a  conveyance  may  be  admitted  for  purpose 
of  identifying  the  land:  Ramsey  v.  Loomis,  6  Or.  367. 

Original  will,  after  probate,  does  not  have  to  be  offered 
and  proved  when  used  as  evidence:  Jones  v.  Dove,  6 
Or.  188. 

Historical  works  are  not  admissible  to  prove  the  unwrit- 
ten law  of  a  country:  State  v.  Moy  Looke,  7  Or.  54. 

Will  devising  the  donation  claim  of  Bartholomew  Dove 
may  be  introduced,  to  be  followed  by  extrinsic  proof 
that  Bethuel  Dove  was  meant:  Jones  v.  Dove,  7  Or.  467. 

Two  writings  of  same  date,  same  parties,  and  same  sub- 
ject-matter should  be  construed  together:  Kruse  v. 
Prindle,  8  Or.  158. 

Execution  of  a  lost  paper  being  disputed,  and  a  pretended 
copy  offered  in  evidence,  its  genuineness  and  the  fact 
of  execution  must  be  left  to  the  jury:  Rosendorf  v. 
Ilirschberg,  8  Or.  240. 

Certified  copy  of  certified  copy  is  not  evidence  of  the 
original,  unless  made  so  by  statute:  Goddard  v.  Parker, 
10  Or.  102. 

Several  different  copies  may  be  attached  and  certified  by 
one  certificate:  Portland  v.  Besser,  10  Or.  242. 

Canceled  county  orders,  in  the  possession  of  the  county 
treasurer,  duly  indorsed,  are  presumed  to  have  been 
regularly  paid:  Id. 

Bills  against  county,  in  favor  of  certain  person  in  the 
clerk's  office,  and  for  which  warrants  have  duly  issued, 
are  presumed  to  have  been  presented  and  filed  by  such 
person:   Id. 

Tax  deed,  offered  with  tax  records  showing  its  invalidity, 
though  regular  on  its  face,  is  no  evidence  of  title:  Id.; 
Pe  Lashmutt  v.  Sellwood,  10  Or.  319. 


E\aDENCE.  255 

Evidence  (continued). 

Documentary  evidence,  proving  plaintiff's  case,  being  ad- 
mitted, and  defendant  not  introducing  evidence  contra- 
dictory, jury  may  be  instructed  to  find  for  plaintiff:  Id. 

Documentary  evidence,  not  offered  before  referee  to  take 
the  testimony,  may  be  put  in  evidence  at  the  hearing: 
Baker  v.  Woodward,  12  Or.  3. 

Printed  advertisement  of  offer  of  reward  by  carrier  is  evi- 
dence of  admission  of  liability  for  loss  of  money  pack- 
age: Bennett  v.  N.  P.  Ex.  Co.,  12  Or.  49. 

Documentary  evidence  may  be  admitted  provisionally, 
and  instructions  as  to  effect  given  afterward:  Smith  v. 
Shattuck,  12  Or.  362. 

Tax  deed,  though  defective  in  description,  may,  when  ac- 
companied by  possession,  be  admitted  to  prove  color  of 
title:  Id. 

Letters  forming  a  contract,  ambiguous  as  to  the  intention, 
may  be  supplemented  by  parol:  Fisk  v.  Henarie,  13 
Or.  156. 

In  action  for  seduction,  letter  by  daughter  to  defendant, 
and  the  oral  reply  thereto,  are  admissible  by  plaintiff, 
and  stand  on  the  footing  of  conversations  between  the 
parties:  Lee  v.  Cooley,  13  Or.  433. 

Witness  may  translate  document  written  in  a  foreign  lan- 
guage, though  not  sworn  as  interpreter:  Krewson  &  Co. 
V.  Purdom,  13  Or.  563. 

In  a  controversy  between  successive  mortgagees  of  chat- 
tels, the  elder  mortgage,  though  not  renewed  according 
to  law,  is  admissible,  to  be  followed  by  proof  of  vhe 
fraudulent  character  of  junior  mortgage:  Case  T.  M. 
Co.  V.  Campbell,  14  Or.  460. 

Whether  a  writing  constitutes  a  contract  is  a  question  for 
the  court:  Tolmie  v.  Dean,  1  W.  T.  46. 

Letter,  containing  an  account  not  objected  to  within  a 
reasonable  time,  is  evidence  of  the  matters  contained  in 
it:  Smith  v.  Kennedy,  1  W.  T.  55. 

So  where  the  genuineness  of  the  answer  to  the  letter  is  in 
question,  the  letter  is  admissible  as  a  circumstance:  Id. 

Memory  of  a  witness  may  be  refreshed  by  reference  to  a 
bill  of  particulars  in  his  own  handwriting:  Williams  & 
Co.  V.  Miller  &  Co.,  1  W.  T.  88. 

Memorandum  of  receiving  agent  of  a  ship,  signed  and 


256  Evidence. 

Evidence  (continued). 

showing  the  receipt  of  the  goods  for  shipment  and  de- 
livery, will  be  considered  a  bill  of  lading:  Williams  v. 
Steamship  Columbia,  1  W.  T.  95. 
Map  offered  by  prisoner  for  purpose  of  illustrating  the 
situation,  loaded  with  explanatory  matter  in  the  nature 
of  hearsay,  is  properly  excluded:  Leonard  v.  Territory, 
2  W.  T.  381. 

7.  Books  Kept  in  Course  of  Business,  etc. 
Account-books,  admissibility  not  decided  generally,  but 

error  if  any  was  waived  by  appellant:  Henderson  v. 

Morris,  5  Or.  24. 
Account-books  to  which  both  partners  had  access  are  imma 

facie  correct  on  an  accounting  between  them:   Boire  v. 

McGinn,  8  Or.  466. 
Bank-books  entered  after  bank  hours  from  tags  and  checks 

made  during  the  day  are  books  of  original  entrj^:  Ladd 

and  Bush  v.  Sears,  9  Or.  244. 
Ambiguous  entries  may  be  explained  by  parol,  but  not 

shown  to  mean  something  different  from  the  import  of 

the  language:  Strong  v.  Kamm,  13  Or.  172. 
Pleadings  alleging  a  contract  by  which  certain  accounts 

should  be  transferred  on  the  partnership  books  to  the 

account  of  one  partner,  the  books  are  proper  evidence  of 

the  performance  of  such  contract:  Moore  v.  Knott,  14 

Or.  35. 

8.  Parol  Evidence. 

Contemporaneous  parol  evidence  inadmissible  to  contra- 
dict or  vary  written  instrument:  Hoxie  v.  Hodges,  1 
Or.  251. 

A  contract  in  writing  to  convey  land  may  be  abandoned 
by  parol:  Guthrie  v.  Thompson,  1  Or.  353. 

In  case  of  patent  ambiguity,  evidence  is  admissible  only 
to  fix  meaning  of  words,  the  import  of  which  is  not  ap- 
parent to  the  court:  Brauns  v.  Stearns,  1  Or.  367. 

Admissible  to  explain  erasure  of  written  instrument  by 
party  offering:  Wren  v.  Fargo,  2  Or.  19. 

When  parties  put  their  contract  in  writing,  no  other  evi- 
dence of  the  contract  admissible:  Lee  v.  Summers,  2 
Or.  260. 

Actual  consideration  different  from  that  expressed  in  deed 
provable  by  parol:  Brown  v.  Cahalin,  3  Or.  45. 


EWDENCE.  257 

Evidence  (continued). 

Item  omitted  by  mistake  from  receipt  on  settlement,  mis- 
take may  be  shown:  Williams  v.  Poppleton,  3  Or.  139. 

But  if  the  item  was  thought  of  at  the  time,  receipt  in  full 
is  conclusive:  Id. 

Surrounding  circumstances  admissible  to  show  general  re- 
ceipt does  not  include  particular  item:  Id. 

Parol  evidence  not  admissible  to  show  that  the  acknowl- 
edgment of  a  married  woman  was  taken  separate  and 
apart  from  her  husband,  when  the  certificate  of  acknowl- 
edgment does  not  show  the  fact:  Harty  v.  Ladd,  3  Or. 
353. 

Nor  to  impeach  acknowledgment  regular  on  its  face,  un- 
less allegations  of  pleadings  warrant  it:  Dolph  v.  Bar- 
ney, 5  Or.  192;  Moore  v.  Fuller,  6  Or.  272. 

Paper  purporting  to  be  a  lease,  but  not  describing  prem- 
ises, is  fatally  defective,  and  the  ambiguity  is  patent  and 
cannot  be  aided  by  parol  evidence:  Noyes  v.  Stauff,  5 
Or.  455. 

Not  admissible  to  show  that  the  judgment  roll  introduced 
to  prove  former  adjudication  contains  issues  that  were 
not  passed  upon  by  the  jury:  Underwood  v.  French,  6 
Or.  66;  Barrett  v.  Failing,  8  Or.  152. 

Admissible  to  prove  partnership  relating  in  part  to  land: 
Knott  V.  Knott,  6  Or.  142. 

Parol  evidence  is  admissible  to  identify  person  or  thing 
described  in  a  will:  Jones  v.  Dove,  6  Or.  188;  S.  C,  7 
Or.  467;  Moreland  v.  Brady,  8  Or.  303. 

Admissible  to  prove  that  a  bill  of  sale  was  intended  as  a 
chattel  moi'tgage:  Bartel  v.  Lope,  6  Or.  321. 

Admissible  to  prove  a  deed  absolute  on  its  face  a  mort- 
gage: Hurford  v.  Harned,  6  Or.  362;  Stephens  v.  Allen, 
11  Or.  188;  Albany  and  Santiam  W.  D.  Co.  v.  Craw- 
ford, 11  Or.  243. 

Admissible  to  show  the  number  of  buildings  and  inhab- 
itants in  a  place,  to  prove  the  existence  of  a  town,  within 
the  statute  prohibiting  toll-gates  near  towns:  Milarkey 
V.  Foster,  6  Or.  379. 

Admissible  to  connect  the  writing  with  the  subject-matter 
of  the  agreement  referred  to  therein,  when  the  instru- 
ment does  not  fully  express  the  same  with  sufficient 

clearness:  Hannah  v.  Shirley,  7  Or.  115. 
Or.  Dig.— 17 


258  Evidence. 

Evidence  (continued). 

Not  admissible  when  the  plea  of  former  adjudication  is 
interposed  to  show  that  certain  of  the  issues  covered  by 
a  judgment  in  a  former  case  were  withdrawn,  and  not 
litigated:  Barrett  v.  Failing,  8  Or.  152. 

Parol  proof  of  a  resulting  trust  in  land  is  admissible,  but 
not  of  an  agreement  to  sell  the  interest  of  the  cestui  que 
trust:  Chenoweth  and  Johnson  v.  Lewis,  9  Or.  150. 

Rule  inhibiting  parol  evidence  to  vary  a  writing  applies 
especially  to  negotiable  paper:  Smith  v.  Caro  and  Baum, 
9  Or.  278. 

Indorsement  in  blank  cannot  be  explained  or  limited  by 
parol:  Id. 

In  suit  on  bond  of  county  clerk,  where  the  original  and 
the  recorded  copy  arc  lost,  parol  proof  of  the  contents, 
the  copy,  and  of  the  names  of  the  sureties  thereon,  ad- 
missible:  Howe  V.  Taylor,  9  Or.  288. 

Parol  evidence  is  admissible  to  locate  stake  as  the  start- 
ing point  in  the  description  of  a  deed  otherwise- definite: 
Boehreinger  v.  Creighton,  10  Or.  42. 

Subsequent  parol  contract  on  same  subject  as  written 
agreement  between  the  parties  may  be  proved:  Orego- 
nian  R'y  Co.  v.  Wright,  10  Or.  162. 

The  appearance  and  condition  of  physical  objects  may  be 
proved  by  parol,  without  producing  the  objects  them- 
selves, or  accounting  for  their  absence:  Hencky  v. 
Smith,  10  Or.  349. 

Equity  permits  parol  proof  contradicting  a  writing  in  case 
of  mistake,  as  in  fraud:  Smith  v.  Butler,  11  Or.  46. 

Admissible  to  show  that  a  writing,  purporting  to  be  an 
agreement,  was  in  fact  a  mere  form  intended  for  an  ul- 
terior purpose:  Branson  v.  Oregonian  R'y  Co.,  11  Or. 
161. 

Parol  evidence  admitted  to  show  a  deed  absolute  on  its 
faae  a  mortgage  is  not  to  var}"^  its  terms,  but  to  estab- 
lish an  equity  superior  thereto:  Stephens  v.  Allen,  11 
Or.  188. 

Service  of  notice  to  quit,  by  landlord  on  tenant,  may  be 
proved  by  parol:  Chung  Yow  v.  Hop  Chong,  11  Or.  220. 

Delivery  of  written  contract  not  under  seal  may  be  shown 
to  have  been  conditional  by  parol:  Simpson  v.  Carson, 
11  Or.  361. 


Evidence.  259 

Evidence  (continued). 

Between  the  original  parties  to  a  note,  semble,  that  where 
on  its  face  it  is  uncertain,  parol  proof  of  whether  prin- 
cipal or  agent  was  intended  to  be  bound  is  admissible: 
Guthrie  v.  Imbrie,  12  Or.  182. 

In  crim.  con.  cases,  marriage  may  be  proved  by  cye-wit- 
ncsses,  or  by  the  parties:    Jacobsen  v.  Siddal,  12  Or. 

280. 
Where  letters  have  passed  between  the  parties  conccrnmg 
a  sale  of  lands,  parol  proof  of  the  previous  understand- 
ing   in  relation   to   the   subject-matter  is  admissible, 
where  the  language  of  the  letters  leaves  the  intention 
in  doubt:   Fisk  v.  Henarie,  13  Or.  157. 
Parol  proof  of  the  pre\dous  understanding  of  the  parties 
in  relation  to  a  contract  for  sale  of  land,  admissible,  to 
be  followed  by  proof  of  a  written  recognition  of  the  con- 
tract, contained  in  letters:  Id. 
Ambiguous  entry  in  book  of  accounts  may  be  explained 
by  parol,  but  cannot  be   shown  to  mean  something 
which  its  language  does  not  import:  Strong  v.  Kamm, 
13  Or.  172. 
In  ejectment,  where  the  description  of  the  land  conveyed 
by  a  deed  is  clear  and  unambiguous,  resort  cannot  be 
had  to  parol  proof  to  show  an  intent  to  convey  a  differ- 
ent tract:  Holcomb  v.  Mooney,  13  Or.  503. 
What  is  a  latent  ambiguity,  and  how  far  parol  evidence 
is  admissible  to  show  what  is  meant  by  the  description 
in  a  deed  plain  on  its  face:  Id. 
Parol  evidence  is  not  admissible  to  show  that  an  expressed 
condition  in  a  bill  of  sale  was  intended  as  a  covenant, 
in  the  absence  of  ambiguity  in  the  instrument:  Hale 
vj^^inch,  1  W.  T.  566. 
Is  properly  admissible  to  show  the  circumstances  under 
which  an  incomplete  memorandum  of  sale  was  signed, 
and  in  what  capacity  the  person  signed  it:  Brewster  v. 
Baxter,  2  W.  T.  135. 
Whether  a  parol  contract  can  be  set  up  to  show  that  a 
note  secured  by  mortgage,  absolute  on  its  face,  was  con- 
ditional, to  be  void  on  failure  of  payee  to  execute  a 
deed,  quxre:  Kenworthy  v.  Merritt,  2  W.  T.  155. 
9.   Opinion  Evidence. 

Not  admissible  except  on  questions  of  skill  or  science, 


260  Evidence. 

Evidence  (continued). 

where  witness  has  no  personal  knowledge  of  the  facts: 
Zachary  v.  Swanger,  1  Or.  92. 

Where  witness  states  his  understanding  of  a  conversation, 
if  it  appear  by  his  other  evidence  that  his  opinion  is 
correct,  the  judgment  will  not  be  reversed,  though  the 
admission  of  such  evidence  is  erroneous:  Aiken  and 
Flavel  V.  Leonard  and  Green,  1  Or.  224. 

Surgeons  as  experts  in  action  for  damages  for  maltreat- 
ment: Heath  v.  Glisan,  3  Or.  64;  Boydston  v.  Giltner, 
3  Or.  118. 

Opinion  of  witness  as  to  what  water  power  would  be  ap- 
purtenant to  a  tract  of  land,  upon  which  he  is  called 
upon  to  value  as  an  expert,  is  not  admissible:  Willa- 
mette Falls  C.  &  L.  Co.  V.  Kelly,  3  Or.  99. 

A  witness  may  testify  to  skill  used  in  the  particular 
operation  in  an  action  for  damages  for  malpractice,  but 
not  generally  as  to  skill  of  defendant:  Boydston  v.  Gilt- 
ner, 3  Or.  118;  Williams  v.  Poppleton,  3  Or.  139. 

Witness  may  testify  as  to  the  meaning  of  technical  words 
in  a  pleading,  but  not  to  the  construction  of  the  plead- 
ing: Williams  v.  Poppleton,  3  Or.  139. 

Opinion  of  medical  experts  as  to  cause  of  death;  forms  of 
questions  depend  on  circumstances,  and  discretionary 
with  the  trial  court:  State  v.  Glass,  5  Or.  73.  . 

Opinion  of  witness  as  to  whom  common  repute  a&cribes 
ownership  is  not  admissible:  Wilson  v.  Maddock,  5  Or. 
480. 

Opinion  of  intimate  acquaintance  to  prove  insanity  ad- 
missible, although  witness  does  not  state  in  express 
words  that  he  is  an  intimate  acquaintance:  Farley  v. 
Parker,  6  Or.  105. 

In  accounting  between  partners,  where  the  books  da  not 
show  the  true  state  of  the  business,  experts  cannot  tes- 
tify as  to  what  the  profits  ought  to  or  might  have  been: 
Boire  v.  McGinn,  8  Or.  466. 

Hypothetical  questions  to  expert  witnesses  must  be  based 
on  the  facts  proved:  State  v.  Anderson,  10  Or.  448. 

Experts  cannot  testify  upon  matters  within  the  ordinary 
scope  of  observation:  Id. 

The  mere  opinion  of  a  non-expert,  without  the  facts  upon 
which  it  is  based,  or  the  opinion  of  an  expert  without 


Evidence.  261 

Evidence  (continued). 

proof  of  his  opportunities  for  making  the  same,  is  inad- 
missible: State  V.  Abrams,  11  Or.  1G9. 

Experiments  to  furnish  data  for  certain  inferences  must 
be  based  on  circumstances  like  those  developed  in  the 
case  on  trial:  State  v.  Justus,  11  Or.  178. 

Experiments  made  by  firing  a  gun  near  pasteboards  to 
show  powder-burns  thereon,  to  show  that  deceased  was 

■     killed  by  a  near  gunshot  wound,  are  inadmissible:  Id. 

Whether  a  shot  was  fired  near  or  at  a  distance,  when  not 
directly  proved,  must  be  proved  by  medical  experts 
from  an  examination  of  the  wound:  Id. 

Experiments  by  non-professional  witnesses,  not  approved 
as  evidence:  Id. 

Mode  of  examining  intimate  acquaintance  as  to  insanity 
of  defendant  in  a  criminal  case:  State  v.  Murray,  11 
Or.  413. 

Opinion  of  a  witness,  as  to  whether  or  not  a  piece  of  land 
is  included  in  a  tract  described  in  a  United   States 
patent,  is  inadmissible:  Johnson  v.  Knott,  13  Or.  308. 
10.    Character  Evidence. 

Defendant  in  an  action  for  damages  for  surgical  malprac- 
tice cannot  prove  his  reputation  for  skill  as  a  surgeon: 
Williams  v.  Poppleton,  3  Or.  139. 

In  criminal  case,  defendant  may  prove  good  character, 
and  state  cannot  show  particular  acts  in  rebuttal:  State 
V.  Garrand,  5  Or.  156. 

Admissible  whenever  character  of  witness  has  been  im- 
peached in  any  of  the  statutory  methods:  Glaze  v. 
AVhitley,  5  Or.  164;  contra,  Sheppard  v.  Yocum  and  De 
Lashmutt,  10  Or.  402. 

Where  witness  has  been  impeached  by  inconsistent  state- 
ments made  by  him,  character  evidence  in  his  behalf 
is  admissible  in  rebuttal;  Id. 

Evidence  of  good  character  introduced  by  prisoner  should 
be  submitted  to  the  jury,  with  the  other  facts  and  cir- 
cumstances of  the  case:  State  v.  Garrand,  5  Or.  216. 

Party  witness  for  herself  cannot  be  impeached  by  show- 
ing particular  acts  of  immoral  conduct:  Leverich  v. 
Frank,  6  Or.  212. 

Her  letter  to  a  third  person  cannot  be  introduced,  con- 
taining language  indicating  she  was  unchaste:  Id. 


262  Evidence. 

Evidence  (continued). 

Particular  facts  called  out  on  cross-examination  of  im- 
peaching witness,  tending  to  show  that  the  latter  is  not 
worthy  of  belief,  may  be  considered  by  the  jury  on 
the  question  of  the  credibility  of  impeached  witness: 
Steeples  v.  Xewton,  7  Or.  110. 

Good  character  of  plaintiff's  and  defendant's  families  may 
be  shown  by  plaintiff  in  an  action  for  seduction:  Parker 
V.  Mouteith,  7  Or.  277. 

Proper  mode  of  impeaching  by  inquiring  into  general 
reputation:  Page  v.  Finley,  8  Or.  45;  State  v.  Clark,  9 
Or.  466. 

The  question  must  be  directed  to  the  general  reputation 
of  the  witness,  and  omitting  the  word  "general"  is  fatal: 
Id.  ' 

Defendant  in  action  for  money  had  and  received,  charged 
with  fraud,  cannot  prove  his  good  character:  Ladd  and 
Bush  V.  Sears,  9  Or.  244. 

General  habits  of  sobriety  cannot  be  proved  to  overcome 
proof  of  intoxication  at  time  certain:  Heneky  v.  Smith, 
10  Or.  349. 

In  malicious  prosecution  case,  founded  on  an  arrest  of  the 
plaintiff  for  larceny,  evidence  of  bad  reputation  of  the 
plaintiff  for  honesty  and  integrity  may  be  proved  in 
defense  to  rebut  proof  of  want  of  probable;"  cause,  and 
in  mitigation  of  damages:  Gee  v.  Culver,  13  Or.  598. 
11.   Res  GESTiE. 

Dying  declarations,  and  those  which  are  part  of  res  gestae, 
are  the  only  declarations  admissible:  Goodall  v.  State, 
1  Or.  333. 

Consultation  at  time  of  alleged  improi3er  surgical  treat- 
ment admissible  as  part  of  the  res  gestse:  Williams  v. 
Popplcton,  3  Or.  139. 

Declarations  as  res  gestae  must  have  been  made  at  the  time: 
State  V.  Glass,  5  Or.  73. 

To  be  contemporaneous,  the  declarations  are  not  required 
to  be  precisely  concurrent  in  time  with  the  main  fact: 
State  V.  Garrand,  5  Or.  216. 

The  fact  that  complaint  by  prosecutrix  in  rape  case  was 
made  immediately  after  the  commission  is  admissible 
to  corroborate  her  testimony,  but  the  particulars  of  her 
statement  cannot  be  given:  State  v.  Tom,  8  Or.  177. 


EVTDENCB.  263 

Evidence  (continued). 

The  declaration  of  a  party  in  his  favor,  in  civil  or  crim- 
inal cases,  is  admissible  only  as  part  of  the  res  gestse: 
State  V.  Anderson,  10  Or.  448. 

Narrations  of  the  occurrence  immediately  after  injuries 
are  received  by  ejectment  from  a  railroad  train,  the  de- 
fendant not  being  then  present,  are  not  part  of  the  res 
gestx:  Sullivan  v.  Oregon  R'y  &  N.  Co.,  12  Or.  392. 

Record  of  a  void  judicial  proceeding  may  be  admissible 
as  a  private  writing  as  part  of  the  res  gestx,  and  to  show 
the  inducement  to  the  execution  of  a  deed:  Stinson  v. 
Porter,  12  Or.  444. 

Insanity  as  a  defense  must  be  proven  to  the  satisfaction 
of  the  jury  by  the  defendant,  upon  whom  the  burden 
lies,  except  where  the  facts  upon  which  it  is  based  are 
part  of  the  res  gestx:  McAllister  v.  Territory,  1  W.  T. 
360. 
12.   Declaeations  and  Admissions. 

Evidence  of  inconsistent  declarations  is  admissible  to  im- 
peach witness,  but  is  not  evidence  of  the  facts  stated 
therein:  State  v.  Fitzhugh,  2  Or.  227. 

Assessment  roll  or  written  statement  furnished  assessor  is 
not  admissible  to  prove  the  value  of  land  sought  to  be 
condemned,  or  to  show  as  an  admission  the  value 
claimed  by  owner:  Oregon  Cascade  R.  R.  Co.  v.  Baily, 
3  Or.  164. 

Declarations  of  deceased,  made  to  her  physicians,  are 
competent  against  the  defendant  in  a  case  of  man- 
slaughter by  attempted  abortion,  to  prove  the  fact  of 
pregnancy:  State  v.  Glass,  5  Or.  73. 

In  action  upon  contract  for  support,  admissions  in  affida- 
vit, made  subsequent  to  the  breach,  and  used  in  another 
forum,  may  be  shown  as  evidence:  Tippin  v.  Ward,  5 
Or.  450. 

Declarations  of  ownership  by  one  in  actual  possession  of 
personalty  are  admissible  after  his  decease  to  prove  his 
title:  Bartel  v.  Lope,  6  Or.  321. 

Method  of  impeaching  by  proof  of  inconsistent  statements: 
State  v.  McDonald,  8  Or.  113;  Sheppard  v.  Yocum  and 
De  Lashmutt,  10  Or.  402;  State  v.  Abrams,  11  Or.  169; 
State  V.  Lurch,  12  Or.  104. 

On  the  trial  of  a  case  of  rape  on  a  child,  where  the  court 


264  Evidence. 

Evidence  (continued). 

has  excluded  the  child  from  testifying  on  account  of 
her  not  possessing  sufficient  age  and  intelligence,  her 
declarations  as  to  the  circumstances  of  the  alleged  rape, 
made  at  the  time,  cannot  be  received  as  evidence:  State 
V.  Tom,  8  Or.  117. 

Declarations  of  deceased  person  or  persons  out  of  the  state 
are  admissible,  when  they  are  relatives,  as  evidence  of 
pedigree:  Thompson  v.  Woolf,  8  Or.  454. 

But  the  person  must  be  proved  a  relative  otherwise  than 
by  his  declarations  alone:  Id. 

Declarations  of  owner  of  real  property,  while  in  possession, 
impeaching  her  title,  are  admissible  against  her  grantee, 
but  not  declarations  in  her  favor  except  accompanying 
her  possession  and  explanatory  of  her  acts  of  owner- 
ship: Besser  v.  Joyce,  9  Or.  310. 

Her  declarations  that  she  had  purchased  of  a  particular 
person,  and  paid  a  definite  sum  out  of  a  certain  fund, 
are  not  admissible  as  evidence  of  such  facts:  Id. 

Declarations  amounting  to  mere  expressions  of  opinion  of 
former  owner  do  not  overcome  proof  of  common  reputa- 
tion of  boundary:  Goddard  v.  Parker,  10  Or.  102. 

Evidence  proving  motive  for  falsehood  in  making  declara- 
tions in  disparagement  of  title,  a-dmissible:  Long  and 
Spaur  V.  Lander,  10  Or.  175. 

The  issue  being  as  to  the  good  faith  of  a  sale,  conversation 
between  the  parties  relative  thereto,  at  the  time,  is  ad- 
missible: Bergman  and  Berry  v.  Twilight,  10  Or.  337. 

Declarations  of  party  in  his  favor,  in  criminal  or  civil 
cases,  admissible  only  as  res  gestos:  State  v.  Anderson, 
10  Or.  448.  J 

When  such  declarations  of  the  defendant  are  admissible 
in  his  behalf  to  negative  the  existence  of  a  criminal  de- 
sign: Id. 

Declarations  of  vendor  after  parting  with  his  interest  are 
not  admissible  to  impeach  the  title  of  his  vendee: 
KrewBon  v.  Purdom,  11  Or.  266. 

Declarations  of  hostility  by  witness,  when  proof  of  admis- 
sible: State  V.  Stewart,  11  Or.  52;  S.  C,  11  Or.  238; 
State  V.  Mackey,  12  Or.  154. 

Declarations  of  a  party's  agent  are  not  admissible  in  his 
favor:  Jones  v.  Kearns,  11  Or.  280, 


Evidence.  265 

Evidence  (continued).  , 

Statement  by  an  attorney  to  his  client  is  not  admissible 

in  favor  of  the  latter  to  prove  a  fact  stated:  White  v. 

Rayburn,  11  Or.  450. 
Declarations  of  a  party  as  to  his  physical  condition,  made 

while  suffering  from  sickness  or  injury,  are  admissible  in 

his  favor:  State  v.  Mackey,  12  Or.  154. 
Letter  to  defendant,  written  by  daughter  of  plaintiff,  in 

action  for  seduction,  and  defendant's  oral  reply,  admis- 
•    sible  in  behalf  of  plaintiff:  Lee  v.  Cooley,  13  Or,  433. 
13.  Dying  Declarations. 

The  only  declarations  of  deceased   admissible  are  dying 

declarations,  or  those  which  are  part  of  res  gestae:  Good- 
all  v.  State,  1  Or.  333. 
When  dying  declarations  are  admitted,  it  is  competent  to 

show  deceased  was  a  disbeliever  in  a  future  state  of 

rewards  and  punishments:  Id. 
No  dying  declaration  admissible  but  those  of  the  person 

for  whose   murder   the   indictment  is  found:    State  v. 

Fitzhugh,  2  Or.  227. 
Dying  declarations  must  be  concerning  cause  of  death, 

and  made  with  consciousness  of  the  approach  of  death: 

State  V.  Garrand,  5  Or.  216.. 
Dying    declarations    are    admissible    for   or   against   the 

accused  in  the  discretion  of  the  court:  State  v.  Ah  Lee, 

7  Or.  237;  State  v.  Saunders,  14  Or.  300;  Thompson  v. 

Territory,  1  W.  T.  548. 
Their    admissibility  is  not  confined  to  cases  where  no 

other  evidence  is  obtainable  as  to  the  killing:  State  v. 

Saunders,  14  Or.  300. 
Must  be  confined  to  facts,  not  conclusions;  such  that  the 

deceased  would   have  been  competent   to  testify  to  if 

sworn  as  witness:  Id. 
"  He  shot  me  down  like  a  dog,"  is  not  such  a  conclusion 

as  to  be  excluded  under  this  rule:  Id. 
Constitutional    provision    that   accused    shall   have    the 

opportunity  to  face  witnesses  does  not  affect  admissi- 
bility of  such  evidence:  Id. 
Objection  to  dying  declarations,  that  deceased  was  an  un- 
believer and  an  infidel,  come  too  late  after  verdict  found 

against  the  prisoner:    Hartigan  v.  Territory,  1  W.  T. 

447. 


26G  Evidence. 

Evidence  (continued). 

Where  the  record  does  not  disclose  the  showing  upon 
which  dying  declarations  were  admitted,  the  presump- 
tion on  appeal  is  that  it  was  sufficient:  Thompson  v. 
Territory,  1  W.  T.  548. 

On  objection  to  the  admission  of  a  declaration  that  "  he 
firmly  believed  that  T.  struck  him  willfully  and  ma- 
liciously," the  court  struck  out  "  willfully  and  mali- 
ciously," and  admitted  the  evidence;  held,  the  rul- 
ing was  favorable  to  the  accused,  and  no  prejudice: 
Id. 

14.  Confessions. 

When  a  conversation  is  admissible  as  confession,  what 
each  pai'ty  thereto  said  may  be  admitted:  State  v. 
-Taylor,  3  Or.  10. 

Admissions  on  advice  of  arresting  officer,  when  may  be 
regarded  as  evidence:  State  v.  Leonard,  3  Or.  157. 

Common-law  rule  excluding  confessions  induced  by  in- 
fluence of  hope  is  not  altered  by  section  169  of  the 
Criminal  Code  (sec.  1368,  Hill's  A.  L.):  State  v.  Wint- 
zingerode,  9  Or.  153. 

After  one  confession  is  obtained  by  promises,  subsequent 
confession  is  not  admissible,  unless  the  facts  show  that 
the  influence  has  ceased  to  operate:  Id. 

Whether  such  influence  has  ceased  to  operate  is  a  ques- 
tion for  the  trial  court,  and  its  decision  will  not  be  re- 
viewed unless  bill  of  exceptions  shows  the  discretion 
was  abused:  Id. 

Confessions  of  one  of  several  confederates,  made  after  the 
enterprise  was  afl'ected,  bind  only  himself,  and  not  his 
confederates:  Sheppard  v.  Yocum  and  De  Lashmutt,  10 
Or.  402. 

As  preliminary  to  proof  of  admissions  by  prisoner,  the 
whole  conversation  need  not  be  given  in  evidence: 
Yelm  Jim  v.  Territory,  1  W.  T.  63. 

Cross-examination  aSbrds  means  of  obtaining  full  state- 
ment: Id. 

15.  Repute. 

Reputation  not  admissible  to  prove  dedication  within 
memory  of  living  persons:  McEwan  v.  Portland,  1  Or. 
300. 

Not  admissible  except  to  prove  matters  of  public  and  gen- 
eral interest,  and  not  a  particular  fact:  Id. 


Evidence.  267 

Evidence  (continued). 

Reputation  as  to  ownership  of  private  property  admissible 
in  Oregon:  Wilson  v.  Haddock,  5  Or.  480;  Bartel  v. 
Lope,  6  Or.  321. 

The  opinion  of  the  witness  as  to  whom  the  common  repute 
ascribes  the  ownership,  not  admissible:  Id. 

Common  repute,  under  the  statute,  is  evidence  of  boun- 
dary: Goddard  v.  Parker,  10  Or.  102. 

Boundary  proved  by  reputation  is  presumed  in  conform- 
ity with  the  original  location,  and  not  overcome  l)y  con- 
tradictory expressions  of  opinion  of  former  owner:  Id. 
IG.   Perpetuation  of  Evidence. 

Granting  of  petition  discretionary;  notice  to  adverse  party 
may  be  required:  In  the  Matter  of  Carter,  3  Or.  293. 

Proceeding  should  not  be  used  to  ascertain  what  adverse 
witness  will  testify:  Id. 

Amendment  of  section  805  of  the  Code  (sec.  815,  Hill's 
A.  L.),  concerning  equity  practice,  it  seems,  leaves  no 
provision  for  taking  deposition  of  a  witness  in  equity 
case,  even  de  bene  esse,  unless  reference  has  been  made 
to  find  the  facts,  or  the  facts  and  the  law:  Marks  &  Co. 
V.  Crow,  14  Or.  382. 
17.   Generally  and  Relevancy. 

Proof  of  a  delivery  of  wheat  in  April,  1857,  will  prove 
allegation,  "  heretofore,  to  wit,  about  and  previous  to 
October  1, 1857  ":  Jackson  v.  Sharif  and  Hill,  1  Or.  246. 

An  uncertified  tax  list  is  not  relevant  in  suit  on  sheriff's 
bond  for  not  returning  certified  tax  list:  Fargo  v. 
County  Commissioners,  1   Or.  262. 

In  action  for  agreed  price,  when  the  evidence  as  to 
whether  that  price  was  agreed  upon  is  conflicting, 
evidence  of  the  value  of  the  property  sold  was  ad- 
imtted  as  a  circumstance  tending  to  disprove  the  al- 
leged agreement:  Brown  v.  Cahalin,  3  Or.  45. 

Proof  of  the  state  of  accounts  was  admitted,  as  tending  to 
contradict  a  claim  of  payment  by  a  release  of  prior  in- 
debtedness: Id. 

What  land  brought  at  sherifl''s  sale  is  no  proof  of  its  value: 
Willamette  Falls  C.  &  L.  Co.  v.  Kelly,  3  Or.  99. 

Consultations  of  surgeons  in  malpractice  case,  not  admis- 
sible except  as  part  of  res  gestx:  Williams  v.  Poppleton, 
3  Or.  139. 


2G8  Evidence. 

Evidence  (continued). 

Which  of  two  recognized  surgical  systems  may  be  best, 
not  questioned  in  such  case:  Id. 

Value  of  coin  in  currency,  or  custom  of  banks  to  pay 
checks  in  coin,  not  admissible,  in  action  to  recover  for 
gold  coin  loaned,  to  show  value  of  the  loan:  Davis  v. 
Mason,  3  Or.  154. 

Where  pleadings  admit  an  agreed  price  for  labor,  reason- 
able value  not  provable:  Id. 

Where  contract  to  pay  at  fixed  rate  was  void  for  not  be- 
ing in  writing,  reasonable  value  admissible:  Id. 

In  action  to  condemn  land  held  by  one  corporation,  evi- 
dence of  the  transactions  of  that  corporation  is  not  ad- 
missible to  prove  that  the  land  is  held  by  it  to  prevent 

■  competition:  Oregon  Cascade  R.  R.  Co.  v.  Baily,  3  Or. 
164. 

The  articles  of  incorporation,  and  the  general  incorpora- 
tion law,  is  the  evidence  of  the  ix)wers  of  a  corporation: 
Id. 

Quiet  and  exclusive  possession,  evidence  of  a  title  until  a 
better  is  shown:  Oregon  Cascade  R.  R.  Co.  v.  Oregon 
Steam  Nav.  Co.,  3  Or.  178. 

Proof  of  value  of  land  condemned  at  the  time  of  the  com- 
mencement of  the  action  determines  the  amount  to  be 
paid  therefor:  Or.  &  Cal.  R.  R.  Co.  v.  Bark>w,  3  Or.  311. 

In  action  for  work  and  labor,  defense  that  plaintiff  did 
not  work  diligently  is  not  admissible  unless  pleaded: 
Albee  v.  Albee,  3  Or.  321. 

The  whole  judgment  roll  is  admissible  to  dispute  jurisdic- 
tion recited  in  a  part  thereof;  administrator's  sale  may 
be  impeached  by  the  record:  Gilmorc  v.  Taylor,  5  Or. 
89. 

In  divorce  suit,  preponderance  of  proof  sufficient,  though 
the  charge  is  of  crime:  Smith  v.  Smith,  5  Or.  188. 

Evidence  of  attempts  to  escape,  admissible  against  pris- 
oner, and  tends  to  prove  guilt:  State  v.  Garrand,  5  Or. 
216. 

Proof  of  personal  indignities,  and  general  demeanor  of 
defendant  toward  plaintiff,  may  be  sutJicicnt  to  prove 
breach  of  contract  to  support  an  infirm  and  aged  per- 
son: Tippin  v.  Ward,  5  Or.  450. 

Lease  for  two  years  in  writing  being  alleged,  proof  of  ver- 
bal lease  for  two  years  is  not  admissible  as  establishing 


Evidence.  269 

Evidence  (continued). 

lease  for  one  year  good  under  statute  of  frauds:  Noyes 

V.  Stauff,  5  Or.  455. 
Deposition  taken  in  different  proceeding  between  other 

parties  to  prove  marriage,  not  admissible  under  section 

819  of  the  Code  (sec.  829,  Hill's  A.  L.):  Murray  v.  Mur- 
ray, G  Or.  26. 
Proof  of  cohabitation  and  recognition  as  man  and  wife  in 

society,  prima  facie  proof  of  marriage  in  civil  suits:  Id. 
On  the  question  of  value  of  town  lots,  proof  of  nearness  to 

city,  cost  of  grading  streets  adjoining,  etc.,  is  relevant: 

Arrigoni  v.  Johnson,  6  Or.  167. 
What  proof  of  damage  is  admissible  in  action  for  obstruct- 
ing stream  and  overflowing  plaintiff's  land:  Marsh  v. 

Trullinger,  6  Or.  356. 
Nature  and  weight  of  evidence  sufficient  to  set  aside  a 

will  for  fraud  and  undue  influence:  Greenwood  v.  Cline, 

7  Or.  17. 
Promissory  note  is  prima  facie  evidence  of  a  settlement: 

Matasce  v.  Hughes,  7  Or.  39. 
Historical  works  are  not  admissible  to  prove  the  unwritten 

law  of  a  foreign  country:  State  v.  Moy  Looke,  7  Or.  54. 
Evidence  of  general  conduct  toward  an  infant,  as  proving 

or  rebutting  malice,  is  admissible  in  action  for  assault 

and  battery:  Smith  v.  Harris,  7  Or.  76. 
Flight  of  defendant  when  charged  with  the  offense  may 

be  shown  by  the  plaintiff  in  an  action  for  seduction: 

Parker  v.  Monteith,  7  Or.  277. 
Proof  that  the  seduction  was  accomplished  under  promise 

of  marriage  is  admissible:  Id. 
Uncorroberated  testimony  of  accomplice  will  not  warrant 

conviction:  State  v.  Odell,  8  Or.  30. 
That  yiisoner  was  in  the  same  town  at  the  time  is  not 

sufficient  corroboration:  Id. 
Evidence,  on  an  appeal  from  an  order  staying  execution, 

cannot  be  introduced  in  the  Supreme  Court  for  the  tirst 

time:  Bentley  v.  Jones,  8  Or.  47. 
To  prove  value  of  horses   killed  on    railroad,    purchase 

price  not  material:  Holstein  v.  0.  &  C.  R.  li.  Co.,  8  Or. 

163. 
Proof  of  former  accident  in  same  place  not  admissible  in 

action  for  injury  to  passenger:  Davis  v.  0.  »<'  C.  R.  R. 

Co.,  8  Or.  172. 


270  Evidence. 

Evidence  (continued). 

Slight  evidence,  tending  to  prove  some  of  the  issues,  is 
admissible:  Elkins  v.  Parrish,  8  Or.  330. 

Court  has  discretion  to  admit  evidence  on  promise  of 
attorney  to  make  the  same  material  by  other  evidence 
to  be  introduced;  Bennett  v.  Stephens,  8  Or.  444. 

After  order  of  interpleader  has  been  made,  evidence  affect- 
ing the  good  faith  of  the  plaintiff  is  not  admissible: 
Fahie  v.  Lindsay,  8  Or.  474. 

Return  of  nulla  bona  is  but  one  kind  of  proof  of  insolvency, 
and  it  may  be  proved  otherwise:  Hodges  and  Wilson  v. 
Silver  Hill  Mining  Co.,  9  Or.  200. 

In  action  on  bond,  testimony  of  sureties  that  they  do  not 
recollect  having  signed  is  of  little  weight  as  against 
■positive  evidence:  Howe  v.  Taylor,  9  Or.  288. 

General  notoriety  of  the  fact  that  a  father  would  not  be 
responsible  for  a  son's  debts  is  not  evidence  to  charge 
with  notice  a  person  dealing  with  them:  Smith  v.  Cox, 
9  Or.  475. 

Evidence  that  purchaser  was  shown  boundaries  of  land, 
and  knew  that  they  were  not  as  described  in  deed,  ad- 
missible on  question  of  fraud:  Id. 

Evidence  reviewed  and  held  not  sufficient  to  charge  notice 
of  unrecorded  deed:  Boehreinger  v.  Creighton,  10  Or. 
42. 

Proof  that  maker,  at  the  time  of  signing  a  note,  was  able 
to  pay  the  note,  is  not  admissible  to  raise  presumption 
that  he  signed  the  same  for  the  accommodation  of  an  in- 
dorser:  Whitlock  and  Manciet  v.  Eigne,  10  Or.  166. 

In  action  for  assault  and  battery,  proof  of  conveyance  by 
defendant  of  his  property  after  action  begun,  under 
suspicious  circumstances,  may  be  submitted  to  the  jury 
as  an  implied  admission  of  guilt:  Heneky  v.  Smith,  10 
Or.  348. 

In  action  to  condemn  right  of  way,  evidence  of  an  en- 
deavor to  agree  as  to  compensation  is  a  prerequisite  to 
suit:  0.  R.  &  N.  Co.  v.  Oregon  Real  Estate  Co.,  10  Or. 
444. 

When  it  becomes  material,  the  identity  and  condition  of 
a  hat,  not  produced,  may  be  shown  by  oral  evidence: 
Heneky  v.  Smith,  10  Or.  349;  State  v.  Abrams,  11  Or. 
169. 


Evidence.  271 

Evidence  (continued). 

When  the  defendant  in  a  criminal  case  offers  evidence 
that  he  was  intoxicated  at  the  time  of  the  commission 
of  the  act,  the  prosecution  may  show  in  rebuttal  what 
the  defendant  did  and  said  when  seen  by  witness  a  few 
minutes  before,  as  facts  from  which  the  jury  may  form 
an  opinion:  State  v.  Abrams,  11  Or.  1G9. 

Experiments  by  firing  a  gun  at  pasteboards  to  prove,  by 
.powder-burns,  distance  of  shot  when  fired,  arc  not  ad- 
missible: State  V.  Justus,  11  Or.  178. 

Board  painted  with  Chinese  characters  admitted  as  evi- 
dence for  the  jury,  with  other  evidence  as  to  whether  it 
contained  rules  adopted  by  the  Joss-house  Company: 
Chung  Yow  V.  Hop  Chong,  11  Or.  220. 

Agent  may  testify  in  what  capacity  and  for  whom  he  was 
acting  as  agent  for  one  or  another:  Bennett  v.  N.  P.  Ex. 
Co.,  12  Or.  49. 

Marriage  may  be  proved  by  eye-witnesses  or  the  parties, 
in  crim.  con.  cases:  Jacobsen  v.  Siddal,  12  Or.  280. 

In  an  action  for  damages  for  ejectment  from  a  train,  plain- 
tiff must  prove,  not  who  was  owner,  but  who  was  using 
the  train:  Sullivan  v.  Oregon  R'y  &  N.  Co.,  12  Or.  392. 

Evidence  is  admissible  in  an  action  on  an  account  stated, 
to  show  that  certain  matters  were  not  included  in  the 
settlement:  Normandin  v.  Gratton,  12  Or.  505. 

Evidence  that  accused  obtained  a  gun  at  a  distant  place, 
and  was  seen  at  different  places  carrying  it  towards  the 
place  of  the  murder,  is  not  rebutted  by  proof  that  he 
was  seen  at  one  place  on  the  way  without  the  gun: 
State  V.  O'Neil,  13  Or.  183. 

In  a  criminal  action,  testimony  that  has  any  possible  bear- 
ing upon  the  defendant's  case  should  not  be  excluded: 
State  V.  Mah  Jim,  13  Or.  235. 

Co-tenant,  who  has  redeemed  the  property  from  tax  sale, 
and  who  claims  to  retain  possession  until  reimbursed, 
may  be  shown  to  have  been  in  receipt  of  all  the  profits 
during  the  time:  Minter  v.  Durham,  13  Or.  470. 

Party  relying  on  a  decree  as  a  part  of  his  proof  of  title 
should  introduce  the  same  in  chief,  that  opposite  party 
may  have  opportunity  to  meet  it:  Walker  v.  Goldsmith, 
14  Or.  125. 

Evidence  that  officers  of  city  improved  a  sidewalk  several 


272  Evidence. 

Evidence  (continued). 

times,  may  go  to  the  jury  on  the  question  whether  the 
locus  was  a  municipal  thoroughfare:  Sheridan  v.  City 
of  Salem,  14  Or.  328. 

Held,  there  was  no  evidence  tending  to  show  a  state  of 
war  among  Indians  in  any  wise  affecting  this  case: 
Yelm  Jim  v.  Territory,  1  W.  T.  G3. 

The  circumstance  of  a  person  voting  in  another  state,  at 
a  presidential  election,  would  not  establish  his  resi- 
dence out  of  the  territory,  against  his  sworn  statement 
of  residence  and  intention  of  returning:  Clarke  v.  Ter- 
ritory, 1  W.  T.  68. 

In  mitigation  of  damages  claimed  for  continued  impris- 
onment, it  may  be  shown  that  t,he  person  imprisoned 
refused  to  accept  bail:  Ferguson  v.  Tobey,  1  W.  T.  275. 

A  mere  blow  inflicted  upon  the  defendant,  nothing  ap- 
pearing to  show  its  severity  or  other  physical  conse- 
quence, is  not  evidence  from  which  insanity  can  be 
inferred:  McAllister  v.  Territory,  1  W.  T.  360. 

Written  testimony  is  that  which,  after  it  is  written  out, 
the  witness  assents  to  as  that  to  which  he  makes  oath, 
and  his  assent  should  be  expressed  by  his  signature: 
Coleman  v.  Yesler,  1  W.  T.  591;  Seattle  &  W.  W. 
R.  R.  Co.  v.  Ah  How,  2  W.  T.  36. 

Difference  between  an  exhibit  and  the  testimony  of  a  wit- 
ness, whether  oral  or  written,  pointed  out:  Doctor  Jack 
v.  Territory,  2  W.  T.  101. 
Examination  of  Witnesses.     See  Witnesses. 
Exceptions.     See  Appeal  and  Error;  Jury  and  Jury  Trial. 
Executions,   and    Proceedings    Supplemental.     See 
Mortgages;  Sheriffs;  Taxation. 

1.  What  Subject  to  Execution. 

2.  Form  and  Issuing. 

3.  Control  of  the  Court. 

4.  The  Levy. 

5.  The  Return. 

6.  The  Sale. 

7.  Confirmation. 

8.  Sheriff's  Deed, 

9.  Redemption. 

10.  Rights  and  Liabilities  of  Officers. 

11.  Validity  and  Rights  of  Parties. 

12.  Proceedings  Supplemental. 


Executions.  273 

Executions  (continued). 

1.  What  Subject  to  Execution. 

Equitable  title  in  land  cannot  be  sold  on  execution:  Smith 
V.  Ingles,  2  Or.  43;  Bloomfield  v.  Humason,  11  Or.  229. 

Exemption  must  be  claimed  at  the  time;  what  is  a  waiver: 
White  V.  Thompson,  3  Or.  115. 

Homestead  entry  commuted  to  pre-emption,  not  liable  for 
debts  incurred  before  patent:  Clark  v.  Bayley,  5  Or.. 
343. 

Land  of  married  woman,  married  before  adoption  of  con- 
stitution, is  exempt  from  execution  for  husband's  debts 
under  section  5,  article  15,  of  the  constitution:  Rugh 
V.  Ottenheimer,  G  Or.  231. 

A  revenue  cutter  of  the  United  States  is  not  subject 
to  process  from  the  state  courts:  Goldsmith  v.  The- 
Revenue  Cutter,  6  Or.  250. 

A  pledgor's  interest  in  property  pledged,  with  a  limited 
power  of  sale  for  the  protection  of  the  pledgee,  may  be 
levied  upon  and  sold  under  execution  against  the 
pledgor:  Williams  v.  Gallick,  11  Or.  337. 

Mortgagee  of  chattel  mortgage  has  no  right  in  the  property 
subject  to  execution:  Knowles  v.  Herbert,  11  Or.  54;. 
S.  C,  11  Or.  240. 

The  property  of  a  corporation  in  the  hands  of  a  stock- 
holder, not  having  been  declared  a  dividend,  is  subject, 
to  execution  on  a  judgment  against  the  corporation: 
Hughes  V.  Oregonian  R'y  Co.,  11  Or.  158. 

A  watch  of  moderate  value  may  be  exempt  as  wearing; 
apparel,  when  all  claimed  is  not  of  value  beyond  the 
statutory  limit:  Stewart  v.  McClung,  12  Or.  431. 

The  burden  is  on  the  debtor  claiming  exemption  to  prove 
afiixmatively  all  facts  to  establish  it:  Id. 

Where  one  buys  chattels  in  his  own  name,  but  as  agent 
for  another,  the  property  is  not  subject  to  execution  on 
a  judgment  against  the  former:  Sires  v.  Newton,  1 
W.  T.  356. 

2.  Form  and  Issuing. 

An  -execution  is  a  writ  within  section  1  of  the  Practice 
Act  of  1851:  Stephens  v.  Dennison  and  Norton,  1  Or.  19. 

May  command  sheriff  to  make  "due  return  thereof,"  in- 
stead of  to  return  it  "within  thirty  days"  under  said 

act:  Id. 

Ok.  Dig.— 18 


274  Executions. 

Executions  (continued). 

In  issuing  execution  on  lapsed  judgment,  court  may  in- 
quire into  validity  of  the  judgment:  Hunsaker  v.  Coffin, 
2  Or.  107. 

Filing  transcript,  on  appeal  from  Justice's  Court,  not  suf- 
ficient docketing  in  the  Circuit  Court  to  warrant  issu- 
ing an  execution  from  the  latter  court:  Chapman  v. 
Raleigh,  3  Or.  34. 

Execution  to  sell  the  premises  may  issue  on  judgment  to 
enforce  mechanic's  lien:  Kendall  v.  McFarland,  4  Or. 
292. 

Cannot  be  issued  for  additional  costs  after  satisfaction  of 
judgment  of  record:  Snipes  v.  Beezley,  5  Or.  420. 

Mere   levy  on   personal  property,  which  is  subsequently 

■  returned,  does  not  prevent  issuing  another  execution: 
Wright  V.  Young,  6  Or.  87. 

Direction  to  levy  on  "real  estate,  goods,  and  chattels"  in 
writ  is  informal,  but  writ  is  not  void:  Id. 

On  proceeding  to  obtain  leave  to  issue  writ  on  dormant 
judgment,  what  questions  considered:  McCracken  v. 
Swartz,  5  Or.  62;  Ladd  v.  Higley,  5  Or.  296;  Strong  v. 
Barnhart,  5  Or.  496;  S.  C,  6  Or.  93. 

May  issue  on  judgment  by  confession:  Allen  v.  Norton,  6 
Or.  344. 

Is  the  proper  method  of  enforcing  lien  of  state  for  costs  of 
criminal  cases:  State  v.  Munds,  7  Or.  80. 

Not  necessary  to  issue  on  judgment  where  property  is 
attached,  in  order  to  sustain  bill  in  equity  to  set  aside 
sale  under  a  fraudulent  decree:  Bremer  &  Co.  v.  Fleck- 
enstein  and  Mayer,  9  Or.  266. 

Not  necessary  to  issue,  where  the  judgment  is  a  lien,  be- 
fore proceeding  in  equity  to  set  aside  a  fraudulent  con- 
veyance or  encumbrance:  Multnomah  St.  R'y  Co.  v. 
Harris,  13  Or.  198. 
3.    Control  of  the  Court. 

Under  power  granted  the  court  under  section  100  of  the 
Civil  Code,  to  relieve  party,  no  necessity  for  resorting  to 
equity  to  stay  execution:  Wells,  Fargo,  &  Co.  v.  Wall,  1 
Or.  295. 

Every  court  has  power  to  control  its  own  process  to  pre- 
vent its  abuse:  Provost  v.  Millard,  3  Or.  370. 

The  court  refused  to  regall  an  execution,  or  require  party 


Executions.  275 

Executions  (continued). 

to  satisfy  of  record  a  decree  in  his  favor,  rendered  by  a 
court  in  another  district,  which  it  is  claimed  has  been 
satisfied  in  fact:  Id. 

On   fiHng   an   undertaking    for   stay   of  proceedings   on 
appeal,    the    Circuit    Court   may    recall   an   execution 
issued:  Bentley  v.  Jones,  8  Or.  47. 
4.   The  Levy. 

Levy  on  personalty  subsequently  returned  is  not  a  satis- 
faction, and  another  execution  may  issue:  Wright  v. 
Young,  6  Or.  87. 

On  personalty  in  the  hands  of  third  person  who  has  a 
lien,  or  who  has  not,  is  trespass:  Spaulding  v.  Ken- 
nedy, 6  Or.  208. 

Officer  cannot  justify  under  such  attempted  levy,  in 
action  for  the  recovery  of  the  property:  Id. 

Levy  is  unnecessary  before  sale  on  execution  upon  a  de- 
cree of  foreclosure:  Bank  of  British  Columbia  v.  Page, 
7  Or.  454. 

Action  on  his  bond,  and  not  mandamus,  is  the  proper 
remedy  when  the  sheriff  refuses  or  neglects  to  levy: 
Habersham  v.  Sears,  11  Or.  431. 

Sheriff  has  no  authority  to  decide  that  his  levy  is  subor- 
dinate to  another  placed  on  the  property  by  a  constable, 
Schneider  v.  Sears,  13  Or.  69. 

5.  The  Return. 

"  In  default  of  personal  property,"  sufficient  statement  in 
return  after  levy  and  sale  of  real  estate:  Griswold  v. 
Stoughton,  2  Or.  61. 

Return  of  nulla  bona  is  but  one  kind  of  proof  of  insol- 
vency, and  the  fact  may  be  proved  otherwise:  Hodges 
and  Wilson  v.  Silver  Hill  Mining  Co.,  9  Or.  200. 

6.  The  Sale. 

Statutory  requirement  that  known  lots  or  parcels  be  sold 
separately  is  directory:  Griswold  v.  Stoughton,  2  Or. 
61;  Dolph  V.  Barney,  5  Or.  192;  Bank  of  British  Colum- 
bia V.  Page,  7  Or.  454. 

Proof  of  sale  is  properly  made  by  introducing  the  judg- 
ment roll  as  prehminary  evidence:  Gilmore  v.  Taylor, 
5  Or.  89. 

Except  in  case  of  abuse,  the  sheriff's  discretion  to  sell 
town  lots  separately  or  together  ought  not  to  be  ques- 
tioned: Bank  of  British  Columbia  v.  Page,  7  Or.  454. 


276  Executions. 

Executions  (continued). 

Irregularities  in  stating  incorrectly  in  the  execution  the 
amount  or  names  are  treated  as  having  been  amended, 
on  collateral  attack:  Jones  v.  Dove,  7  Or.  467. 

Kesale  after  appeal  and  modification  of  decree  must  con- 
form to  subdivisions  3  and  4  of  section  293  of  the  Code 
(sec.  296,  Hill's  A.  L.):  Trullinger  v.  Kofoed,  8  Or.  436. 

Sale  may  be  enjoined  in  equity  when  it  will  cloud  the 
title  to  realty:  Cox  v.  Smith  and  Forward,  10  Or.  418; 
Wilhelm  v.  Woodcock,  11  Or.  518. 

7.  Confirmation. 

Judgment  debtor,  or  his  representatives  after  his  death, 
are  the  parties  to  object  to  confirmation:  Miller  v.  Bank 
.  of  British  Columbia,  2  Or.  291.   , 

Judgment  creditor,  not  a  party  to  judgment,  cannot 
object  to  confirmation:  Miller  v.  Oregon  City  Mfg. 
Co.;  3  Or.  24. 

Confirmation  is  a  final  adjudication  touching  regularity 
of  the  proceedings,  and  conclusive  as  to  all  persons  in 
any  other  suit  or  proceeding:  Matthews  v.  Eddy,  4  Or. 
225;  Dolph  v.  Barney,  5  Or.  1S2;  McRae  v.  Daviner,  8 
Or.  63.    . 

Confirmation  of  all  sales  on  execution,  by  the  Circuit 
Court  upon  submission  of  the  deed,  was  necessary  and 
proper  practice  prior  to  June  1,  1863:  Wright  v.  Young, 
6  Or.  87. 

Omission  to  indorse  approval  of  the  court  on  the  deed 
does  not  render  it  void:  Id. 

Order  of  confirmation  is  conclusive  as  to  regularity  of 
proceedings  after  execution  and  before  confirmation: 
Id. 

Order  of  confirmation  is  appealable:  Dell  v.  Estes  and 
Carter,  10  Or.  359. 

Objections  must  bo  filed  within  the  time  allowed  by  stat- 
ute, and  cannot  be  filed  afterwards  without  leave  ob- 
tained from  the  court:  Id. 

Description  in  order  of  confirmation  held  insufficient  to 
identify  the  land:  Swift  v.  Mulkey,  14  Or.  59. 

8.  Sheriff's  Deed. 

Recitals  in,  and  irregularities  in;  effect  of  confirmation: 

Mathews  v.  Eddy,  1  Or.  225. 
"Where  all  steps  have  been  regularly  taken,  recitals  are 

prima  facie  evidence,  and  deed  is  evidence   of  title: 

Dolph  v.  Barney,  5  Or.  192. 


Executions.  277 

Executions  (continued). 

May  be  executed  by  the  sheriff  in  oflBce  when  deed  is  due, 
after  time  for  redemption:  Moore  v.  Willamette  T.  &  L. 
Co.,  7  Or.  359. 

Deed  to  land  held  by  fee-simple  conditional  title  with  lim- 
itation over  by  executory  devise,  made  on  sheriff's  sale 
before    the   happening   of  the  condition,    conveys  fee- 
siniplo  title:  Rowland  v.  Warren,  10  Or.  12'J. 
9.    Redemption. 

After  time  for  redemption  is  past,  judgment  debtor  cannot 
upon  mere  motion  have  sale  set  aside:  Griswold  v. 
Stoughton,  2  Or.  61. 

In  case  of  foreclosure  of  a  number  of  mortgage  liens: 
Chavener  v.  Wood,  2  Or.  182. 

On  redemption,  effect  of  sale  is  terminated,  and  premises 
must  be  restored  to  their  original  condition:  Cartwright 
v.  Savage,  5  Or.  397. 

Judgment  debtor,  on  redeeming,  may  recover  value  of 
crop  growing  at  time  of  sale,  and  harvested  by  purchaser 
while  in  possession:  Id. 

Who  may  redeem  on  foreclosure  of  mortgage,  and  on  what 
terms:  Chavener  v.  Wood,  2  Or.  182;  Atkinson  v.  Mor- 
rissy,  3  Or.  832;  Abraham  v.  Chenoweth,  9  Or.  348; 
Sellwood  V.  Gray  and  De  Lashmutt,  11  Or.  534;  Parker 
V.  Dacres,  2  W.  T.  439. 

Mortgagee  not  made  a  party  need  not  redeem,  but  may 
foreclose  as  if  no  sale  was  made:  Besser  v.  Hawthorn, 
3  Or.  129;  S.  C,  3  Or.  512. 

Redemption,  in  the  sense  of  the  statute,  is  not  a  common- 
law  but  an  equity  term:  Abraham  v.  Chenoweth,  9  Or. 
348. 

Th^ght  of  the  purchaser  in  possession  before  redemption, 
is  an  equitable  estate:  Id. 

After  time  for  redemption  expires,  by  the  sheriff's  deed, 
his  equitable  estate  becomes  a  legal  estate  by  merger:  Id. 

Redemption  from  tax  sale  differs  in  that  respect  from  re- 
demption from  judicial  sale:  Id. 

On  foreclosure  of  wife's  mortgage  after  her  death,  husband 
failing  to  redeem,  he  has  no  right  by  curtesy  as  against 
a  person  redeeming,  who  has  also  acquired  the  interest 
of  tiie  wife's  children  in  the  property:  Id. 

Right  to  redeem  applies  only  to  sales  on  execution,  not  to 


278  Executions. 

Executions  (continued). 

foreclosure  sales  in  Washington   Territory:  Parker  v. 
Dacres,  2  W.  T.  439. 
10.   Rights  and  Liabilities  of  Officers. 

Officer  protected  by  process,  valid  on  its  face;  not  so  jus- 
tice or  party  improperly  issuing:  White  v.  Thompson, 
3  Or.  115. 

Sheriff  liable  for  failure  to  levy  where  judgment  creditor 
is  injured:  Moore  v.  Floyd,  4  Or.  101. 

Where  sheriff  fails  to  make  return  or  to  levy,  it  is  pre- 
sumed that  plaintiff  in  execution  has  lost  his  debt,  and 
burden  is  on  the  sheriff  to  show  otherwise:  Id. 

Sheriff  must  obey  writ  in  due  form,  and  cannot  refuse  to 
execute  or  return,  and  thus  require  the  parties  to  de- 
termine the  legality  of  the  judgment:  Richards  v.  Nye, 
5  Or.  382. 

Sheriff  is  not  bound,  when  he  takes  money  conditionally 
from  debtor,  to  allow  him  longer  than  until  the  end  of 
the  time  for  return,  to  test  the  legality  of  execution:  Id. 

Verdict  of  a  jury  under  section  284  of  the  Code  (sec.  287, 
Hill's  A.  L.)  operates  as  full  indemnity  to  sheriff:  Rem- 
dall  V.  Swackhamer,  8  Or.  502;  Capital  Lumbering  Co. 
V.  Hall,  9  Or.  93;  Hexter  v.  Schneider,  14  Or.  184. 

When  verdict  is  against  the  claimant,  he  cannot  afterward 
maintain  action  of  replevin  against  the  sheriff  for  the 
goods:  Capital  Lumbering  Co.  v.  Hall,  9  Or.  93. 

Clerk  is  not  entitled  to  collect  commissions  on  moneys 
not  actually  coming  to  his  hands:  Jackson  v.  Siglin, 
10  Or.  93. 

Action  on  bond,  and  not  mandamus,  is  proper  remedy  for 
failure  of  officer  to  levy:  Habersham  v.  Scars,  11  Or. 
431. 

The  essential  allegations,  in  a  complaint  against  a  sheriff 
for  neglect  to  pay  over  money  realized  on  executions, 
are  the  existence  of  the  judgment,  the  issuing  of  the  writ, 
the  realization  of  the.  money,  and  the  neglect  to  pay  it 
over:  Schneider  v.  Sears,  13  Or.  69. 

Sheriff  having  levied  on  personalty  as  the  property  of  one 
person,  when  sued  in  conversion  by  another,  may  defend 
by  showing  the  title  is  in  a  third  party:  Krewson  & 
Co.  V.  Purdom,  13  Or.  563. 

Verdict  of  jury,  called  by  officer  to  try  the  title  to  goods 
taken  on  execution,  while  protecting  the  sheriff,  does 


Executions.  '^"' 

the  purchaser  on  execution  sale:  Hexter  v.  Schneider, 

Sheriff'is  not  entitled  to  commission  on  execution  sales, 
where  judgment  creditor  bids  in  the  property,  and  no 
money  passes  to  the  sheriff:  Coleman  v.  Ross,  14  Or. 

349. 
11.   Validity  and  Rights  of  Parties. 

Judgment  creditor  purchasing  is  chargeable  with  all  ir- 
regularities, but  a  stranger  purchasing  is  charged  with 
substantive  defects  only:  Stephens  v.  Dennison  and  Nor- 

Execution  will  not  be  set  aside  because  writ  directed  sher- 
iff to  make  "due  return  thereof"  instead  of  to  return  the 
same  within  thirty  days:  Id. 

Validity  of  judgment  will  not  be  questioned  on  mere  mo- 
tion after  sale:  Griswold  v.  Stoughton,  2  Or  bl. 

Objection  that  two  or  more  parcels  were  sold  m  gross  is 
not  considered  on  such  motion:  Id.  . 

Plaintiff  in  execution  purchasing  extinguishes  the  specific 
lien  of  his  mortgage  foreclosed:  Chavener  v.  Wood,  2 

Pu^chaL  with  knowledge  of  equitable  rights  in  another 
will  be  postponed  to  those  rights:  Stannis   v.  Nicholson, 

2  Or.  332.  ,       ,  - 

Sale  on  execution  upon  judgment  without  foreclosure  of 

mortgage  securing  the  debt  valid:  Mathews  v.  Eddy,  4 

Or  225 
Purchaser  entitled  to  enter,  use,  and  occupy,  for  purposes 
such  as  premises  can  put  to  for  time  he  is  in:  Cart- 
wjdght  V.  Savage,  5  Or.  397. 
But^i  redemption  the  purchaser  will  be  required  to  repay 
to  the  judgment  debtor  the  value  of  a  growing  crop  har- 
vested while  he  was  in  possession:  Id. 
Where   two   executions  issued   simultaneously  on  same 
iudgment,  and  but  one  was  executed,  proceeding  was 
irregular,  but  waived  by  not  having  taken  advantage  by 
motion  to  quash:  Wright  v.  Young,  6  Or.  87 
Executions  issued  without  authority  are  void,  but  issued 
with  authority  which  is  erroneously  pursued  voidable, 
and  on  collateral  attack  irregularities  are  ignored:  Jones 
V.  Dove,  7  Or.  467. 


280  Executions. 

Executions  (continued). 

Purcliaser  depends  on  the  judgment,  levy,  and  deed;  other 

questions  are  between  the  parties  to  the  judgment  and 

the  sheriff:  McRae  v.  Daviner,  8  Or.  63. 
Former  purchaser  is  to  be  first  repaid  on  applying  the 

moneys  realized  from  resale:  Trullingerv.  Kofoed,  8  Or. 

436. 
Purchaser,  under  judgment   against   a   married  woman 

upon  a  note  signed  by  her  as  surety,  takes  good  title 

where  the   record    does  not   show  she  was  a  married 

woman:  Farris  v.  Hayes,  9  Or.  81. 
Equity  will  not  set  aside  sale  void  on  its  face  for  want  of 

notice  to  defendant  of  the  action,  where  there  is  a  remedy 

by  ejectment:  Id. 
Purchaser  is  entitled  to  immediate  possession,  unless  there 

be  a  tenant  holding  over:  Bank  of  British  Columbia  v. 

Harlow  and  Page,  9  Or.  338. 
Undertaking  on  appeal  from  confirmation,  providing  for 

payment  of  value  of  the  use  if  the  order  is  affirmed,  is 

not  provided  for  by  law,  and  does  not  bind  sureties:  Id. 
Such  undertaking  gives  appellant  no  right  of  possession: 

Id. 
Action  for  money  had  and  received  lies  to  recover  money 

paid  by  purchaser  at  execution  sale,  where  there  is  no 

judgment  upon  which  execution  issues:  Hoxter  v.  Pop- 

pleton,  9  Or.  461. 
The  ordinary  rule  of  caveat  emptor  does  not  apply  in  such 

case:  Id. 
Purchaser  without  notice  on  execution  against  a  grantor 

of  land,  who  by  reason  of  defect  in  conveyance  has  the 

legal  title  thereto,  has  superior  rights  to  the  grantee: 

Bloonifield  v.  Ilumason,  11  Or.  229. 
Rule  of  caveat  emptor  applies;    good  faith  of  purchaser 

avails  nothing  against  tlie  true  owner  wlio  is  not  a  party 

to  the  process:  Hoxter  v.  Sclineider,  14  Or.  184. 
Claimant  of  property  sold  on  execution  is  not  concluded 

by  verdict  of  sheriff''s  jury  adverse  to  him  from  bring- 
ing replevin  against  purchaser:  Id. 
Chattels  of  principal,  purchased  by  agent  in  his  own  name, 

cannot  be  sold  on  execution  against  the  agent:  Sires  v. 

Newton,  1  W.  T.  356. 


False  Imprisonment.  281 

Executions  (continued). 

12.   Proceedings  Sitplemental. 

Are  legal,  pot  equitable;  foreclosure  cannot  be  enforced 
therein:  Knowles  v.  Herbert,  11   Or.  54;  S.  C,  11  Or. 
240. 
Against  garnishee  are  proceedings  at   law,  and   not  in 
equity,  and  notice  of  appeal  must  specify  errors  sought 
to  be  reviewed:  Williams  v.  Gallick,  11  Or.  337. 
Right  to  supplemental  proceedings  under  statute  could 
not  be  cut  off  or  summarily  taken  away  by  force  of  a 
new  statute  without  allowing  reasonable  time  for  lim- 
itation: Murne  v.  Schwabacher  Bros.  <fc  Co.,  2  W.  T. 
130. 
Afiidavit   in    such   proceedings   may,  by  permission,  be 

amended  to  conform  to  the  original  proceeding:  Id. 
Such  proceedings  under  the  Code  take  place  of  creditor's 
bill,  and  therefore  are  to  be  heard  and  determined  by 
the  judge  without  jury:  Id. 
When  new  party  should  be  brought  in:  Murne  v.  Schwa- 
bacher Bros.  &  Co.,  2  W.  T.  130;  S.  C,  2  W.  T.  191. 
The  proceedings  are  of  equitable  cognizance,  though  at- 
tached to  a  law  case:  Murne  v.  Schwabacher  Bros.  & 
Co.,  2  W.  T.  191. 
Principal  having  knowledge  of  proceedings  against  his 
agent  to  apply,  as  the  property  of  the  agent,  the  prop- 
erty of  the  principal  in  agent's  hands  to  the  payment  of 
the  latter's  debt  must  intervene,  or  cannot  complain  of 
loss:  Id. 
Party  after  arrest,  and  being  advised  of  proceedings  against 
him,  cannot  dispose  of  property,  and  avoid  responsibil- 
ity of  applying  it  in  satisfaction-  Id. 
ExecutuTS.     See  Administrators  and  Executors. 
Exemplary  Damages.     See  Damages. 
Exem.ptions.    See  Executions,  and  Proceedings  Supplemen- 
tal. 
Experts.     See  Evidence. 
Extortion  by  Threats.     See  Threats. 
Factor's.     See  l>rokers. 
False  Imprisonment.     See  Malicious  Prosecution. 

Assault  with  dangerous  weapon  is  felony;  private  person, 
though  not  seeing  the  offense  committed,  may  arrest 
the  offender:  Lander  v.  Miles,  3  Or.  35. 


282  False  Imprisonment. 

False  Imprisonment  (continued). 

Preponderance  of  evidence  of  guilt  of  accused  sufficient 
to  justify  arrest:  Id. 

Firing  a  gun  on  accused  to  secure  his  arrest  justifiable 
only  when  necessary:  Id. 
False  Pretenses. 

Defendant  accused  of  obtaining  money  on  forged  notes 
may  prove  in  defense  that  the  signatures  were  signed 
by  him  with  authority:  State  v.  Lurch,  12  Or.  95. 

A  note  so  signed  is  not  a  false  writing:  Id. 
False  Representations.     See  Fraud  and  Deceit. 
Family  Expenses.     See  Husband  and  Wife. 
Federal  Relations.     See  Admiralty;  Constitutional  Law; 

Courts;  Jurisdiction;  Public  Lands;  State. 
Fee-tail. 

Estates  in  fee-tail  are  abolished;  estates  of  inheritance 
are  subject  to  a  general  power  of  alienation:  Rowland 
V.  Warren,  10  Or.  129. 
Fees.  See  Assessors;  Attorneys;  Bills  and  Notes;  Compen- 
sation; Costs  and  Disbursements;  County  Clerks; 
Sheriffs. 

Fees  of  officers  may  be  paid  in  currency,  and  they  have  no 
right  to  demand  coin:  Coffin  v.  Coulson,  2  Or.  205. 

Law  requiring  witness  to  demand  his  fees  at  the  term 
when  he  is  subpoenaed  is  not  unconstitutional:  Lanna- 
han  V.  Multnomah  County,  3  Or.  187. 

Act  of  October  21,  1864,  relating  to  fees  in  counties  east 
of  the  Cascade  Mountains,  is  an  original  act,  and  not 
amendatory:  Bird  v.  Wasco  County,  3  Or.  282. 

Legislature  may  control  unearned  fees,  except  where  pro- 
hibited by  constitution:  Portland  v.  Besser,  10  Or.  242. 

Percentage  of  county  treasurer  for  receiving  school  funds, 
allowed  by  a  statute  not  referred  to  in  a  re-enactment 
of  the  law  fixing  the  salary  of  the  county  treasurer,  may 
still  be  retained  by  him  for  such  duties:  Chatfield  v. 
Washington  "County,  3  Or.  318. 

Shcriff''s  fees  and  mileage,  construction  and  application  of 
statute:  llowe  v.  Douglas  County,  3  Or.  488;  Crossen  v. 
Earhart,  8  Or.  370. 

Indictment  for  charging  unlawful  fees  by  county  clerk: 
State  V.  Packard,  4  Or.  157. 

Fees  and  salary  of  police  judge  of  city  of  Portland:  Port- 


Fees.  28S 

Fees  (continued). 

land  V.  Denny,  5  Or.  IGO;  Adams  v.  Multnomah  County, 

6  Or.  IIG. 
County  assessors  are  not  entitled  to  mileage:  Taylor  v. 

Umatilla  County,  6  Or.  401. 
Fees  of  district  attorney  in  foreclosure  suits  by  school  land 

commissioners:    Claim    of  Ison,  6    Or.   465;    Hazard's 

Appeal,  9  Or.  36G. 
Fees  of  district  attorney  in  actions  on  official  undertak- 
ings: Claim  of  Ison,  6  Or.  469. 
No  fee  fixed  by  statute  for  coroner  for  summoning  jury: 

Cook  V.  Multnomah  County,  8  Or.  170. 
The  County  Court  has  discretionary  power  to  fix  such  fee 

in  each  case,  and  the  exercise  of  the  power  is  not  sub- 
ject to  writ  of  review:  Id. 
Sheriff  is  not  entitled  to  mileage  in  transporting  convicts 

to  the  penitentiary:  Crossen  v.  Earhart,  8  Or.  370, 
Act  to   provide  compensation  of  clerks  and  sheriffs  in 

certain  counties  held  unconstitutional  as  a  local  law: 

Manning  v.  Klippel,  9  Or.  367. 
Statutes  giving  costs  must  be  strictly  construed:  Jackson 

v.  Siglin,  10  Or.  93. 
Promise  to  pay  fees  not  authorized  by  law  is  void  and 

cannot  be  enforced:  Id. 
County  clerk  is  not  entitled  to  commission  on  money  bid 

on  sale  on  execution  by  the  judgment  creditor  and  not 

actually  coming  to  the  hands  of  the  clerk:  Id. 
Sheriff  and  tax  collector  not  distinct  ofiBces,  and  sheriff 

not  entitled  to  additional  compensation  as  tax  collector: 

Lane  v.  Coos  County,  10  Or.  123. 
Chief  of  police  is  not  entitled  to  fees  as  constable  when 

acting  as  such  in  state  cases:  Portland  v.  Besser,  10 

Or.  242. 
Keeper's  fees,  for  care  of  attached  property,  are  chargeable 

upon  the  assets  by  the  sheriff,  and  are  not  to  be  taxed 

as  costs  in  the  action:  Schneider  v.  Sears,  13  Or.  69. 
Disbursements  and  sheriff's  fees  in  a  trial  of  the  right  to 

property  before  a  sheriff  are  not  taxable  as  costs  in  the 

original  action:  Id. 
Witness  in  criminal  case  is  entitled  to  but  two  dollars  per 

day  and  mileage,  though  subpoenaed  out  of  the  county: 

Sargent  v.  Umatilla  County,  13  Or.  4-i2. 


284  Fees. 

Fees  (continued). 

Section  785  of  the  Civil  Code  (sec.  795,  Hill's  A.  L.),  pro- 
viding for  double  fees  to  witnesses  in  certain  cases,  does 
not  apply  to  criminal  cases:  Id. 

Statute  requiring  witnesses  residing  within  two  miles  of 
place  of  trial  in  criminal  cases  to  attend  without  re- 
ceiving fees  is  not  unconstitutional  as  requiring  partic- 
ular services  without  compensation:  Daly  v.  Multnomah 
County,  14  Or.  20. 

Sheriff  is  not  entitled  to  commission  on  execution  sale, 
where  judgment  creditor  bids  in  the  property,  and  no 
money  passes  to  the  sheriff:  Coleman  v.  Ross,  14  Or. 
349. 
Felony.     See  Criminal  Law;  Pardon. 
Feme  Covert.     See  Husband  and  Wife. 
Fences.     See  Boundaries. 

Neither  railroad  or  adjoining  owner  is  required  by  law  to 
fence  the  line  between  them:  Oregon  Central  R.  R.  Co. 
V.  Wait,  3  Or.  91. 

Common-law  rule  that  owner  is  required  to  keep  his  cattle 
within  his  own  close,  under  penalty  of  answering  in 
damages  for  injuries,  not  in  force  in  Oregon:  Campbell 
V.  Bridwell,  5  Or.  311. 

Complaint  in  action  for  trespass  by  cattle,  must  show  a 
statutory  fence  maintained  by  plaintiff:  Id. 

But  in  absence  of  statute,  owner  of  land  need  not  main- 
tain fence  to  sustain  such  action:  French  v.  Cresswell, 
13  Or.  418. 

Statutory  requirement  to  fence  against  certain  specified 
kinds  of  stock,  in  Umatilla  County,  does  not  apply  to 
sheep  which  are  not  mentioned:  Id. 
Ferries.     See  Highways. 

Franchise  does  not  belong  of  right  to  owner  of  soil,  but  he 
is  entitled  to  preference  if  he  applies  before  license  is 
granted:  Ciant  v.  Drew,  1  Or.  35;  Mills  v.  Learn,  2  Or. 
215. 

Cannot  be  established  for  one  year;  license  must  be  per- 
petual: Cason  v.  Stone,  1  Or.  39. 

County  commissioners  are  final  judges  of  necessity  for:  Id. 

Appeals  from  commissioners'  decisions  to  District  Court: 
Carothers  v.  Wheeler,  1  Or.  194. 

Before  a  county  had  a  "court-house"  where  court  was 


FEBIUE3.  285 

Ferries  (continued). 

regularly  held,  what  Bufliciciit  posting  of  notices:  Drew 
V.  Gant,  1  Or.  197. 

What  is  sufficient  bond  under  order  granting  license:  Id. 

Circumstances  of  payment  of  license  fee  in  particular  case, 
held  sufficient:  Id. 

Charier  fixing  rates  the  same  "  as  other  ferries  are  or  may 
hereafter  be,"  rates  may  be  changed  by  law:  Stephens 
and  Frush  v.  Powell,  1  Or.  283. 

Riparian  owner  has  not  the  exclusive  right  to  a  ferry: 
Mills  V.  Learn,  2  Or.  215. 

Ferry  landings  in  the  line  of  a  continuous  highway  are  a 
part  thereof:  Id.;  Price  v.  Knott,  8  Or.  438;  Montgom- 
ery V.  Multnomah  R'y  Co.,  11  Or.  344. 

The  right  and  ownership  of  ferry,  with  such  landings, 
confers  a  right  to  land  on  the  banks:  Id. 

The  riparian  owner,  having  had  due  notice  and  waived 
his  rights,  cannot  object  to  another  having  the  ferry: 
Id. 

License  granted  to  another  than  riparian  owner  is  a  per- 
sonal trust,  and  expires  with  death  of  grantee:  Knott  v. 
Frush,  2  Or.  237. 

Reservation  in  sale  of  franchise,  for  free  ferriage  for  grantee 
and  his  family,  construed:  Stephens  v.  Knott,  2  Or.  304, 
overruling  Stephens  v.  Knott,  3  Or.  50. 

Person  employed  by  grantee,  hauling  lumber,  included 
in  family  right  to  free  ferriage:  Id. 

Ferry  license  under  act  of  1854  is  a  franchise  limited  to 
a  term  of  years:  Beckley  v.  Learn,  3  Or.  470. 

Owner  of  lands  may  assert  his  right  to  preference,  after 
expiration  of  a  license:  Id.;  Beckley  v.  Learn,  3  Or.  544. 

PartrrcT  taking  ferry  and  franchise  in  his  own  name,  pur- 
chased for  the  firm  wit<li  partnership  property,  held  a 
trustee  for  the  partnership:  Knott  v.  Knott,  6  Or.  142. 

License  granted  by  the  territory  to  Stephens  is  perpetual, 
and  need  not  be  renewed  by  County  Court:  Multnomah 
Co.  V.  Knott,  6  Or.  279. 

Fines  and  forfeitures  for  maintaining  ferry  without  license 
must  be  recovered  in  an  action  before  a  justice:  Id. 

Passenger  has  no  right  to  presume  boat  is  landed  when 
chain-guard  is  down,  when  personally  notified  other- 
wise: Davis  v.  0.  &  C.  R.  R.  Co.,  8  Or.  172. 


286  Ferries. 

Ferries  (continued). 

Exclusive  right  granted  by  the  territory  to  Stephens  was 
limited  to  ten  years,  and  expires  by  lapse  of  time: 
Price  V.  Knott,  8  Or.  438. 

One  ferry  license  limits  the  right  to  one  line  of  boats 
which  must  ply  between  two  certain  points:  Id. 

Deed  of  ferry  right  con^rued  as  not  exclusive,  or  permit- 
ting grantee  to  claim  right  to  more  than  one  ferry: 
Knott  Bros.  v.  Jef'n  St.  Ferry  Co.,  9  Or.  530. 

Owners  of  one  ferry  cannot  appear  as  parties  contesting 
application  of  other  parties  to  a  license  for  a  ferry  at 
another  point  on  same  river:  Id. 

Ferry  must  be  granted  on  the  line  of  a  highway,  and  can 
be  granted  at  no  other  place:  Montgomery  v.  Multno- 
mah County  R'y  Co.,  11  Or.  344;  S.  C,  12  Or.  25. 

But  one  ferry  can  be  licensed  at  one  point  on  a  river,  and 
the  grant  is  exclusive:  Id. 

County  Court  cannot  grant  ferry  at  side  of  another  to  ac- 
commodate same  traveling  public:  Id. 

Whether  assignment  of  ferry  license  is  void,  qxisere:  Id^; 
Hackett  v.  Multnomah  Railway  Co.,  12  Or.  124. 

Right  to  object  to  the  assignment  of  a  ferry  license  as 
void  is  in  the  state,  and  must  be  exercised  by  the 
proper  officers:  Id. 

Corporation  may  be  joint  with   an  individual  owner  in 
ferry  franchise,  and  entitled  to  its  share  of  the  earn- 
ings, and  may  have  an  accounting  in  equity:  Id. 
Fieri  Facias.     See  Executions,  and   Proceedings   Supple- 
mental. 
Filing  Papers.     See  Appeals;  Records. 

Presumption  when  "  F.  S.  Holland,  clerk,"  is  indorsed  on 
a  notice  of  appeal  is,  that  it  is  the  F.  S.  Holland  who 
was  clerk  of  the  court:  Carothers  v.  Wheeler,  1  Or.  194- 

What  constitutes  filing,  and  duties  of  clerk  receiving 
paper  without  the  fees  for  filing:  McDonald  v.  Crusen, 
2  Or.  258. 

Placing  paper  among  the  files,  with  date  of  reception  and 
clerk's  name  indorsed,  is  sufficient:  Id. 

A  paper  not  marked  "filed,"  but  found  among  the  papers  of 
a  case  in  the  proper  custody,  and  upon  which  the  court 
apparently  acted,  is  "prima  facie  part  of  the  record,  and 


Fixtures.  287 

Filing:  Papers  (continued). 

in   fact  filed:  Moore  v.  Willamette  T.  &  L.  Co.,  7  Or. 
3G7. 

Notice  must  be  served  before  undertaking  on  appeal  is 
filed,  and  simply  refiling  the  latter  is  insufficient: 
Weiss  V.  Jackson  Count}',  8  Or.  529. 

Undertaking  filed  by  clerk, -by  excusable  mistake,  before 
notice  of  appeal  was  filed,  he  cannot  refile  or  change 
the  date  of  filing:  Hawthorne  v.  East  Portland,  12  Or. 
210. 

Indorsement  on  the  original, of  filing  and  recording. is  not 
evidence   of    the   recording:    Jewett   v.    Darlington,    1 
W.  T.  601. 
Findings.     See  Appeals;  Practice;  References. 
Fines  and  Forfeitures. 

Proceeding  by  indictment  is  an  "action  at  law"  tore- 
cover  fines  within  the  meaning  of  the  act  of  1876  to 
punish  and  prevent  gambling:  State  v.  Carr,  6  Or.  133. 

Actions  to  recover,  for  maintaining  ferry  without  license, 
must  be  brought  before  a  justice:  Multnomah  County 
V.  Knott,  6  Or.  279. 

Statute  creating  the  ofiense,  and  affixing  penalty  to  be 
recovered  in  Justice's  Court,  gives  justice  exclusive 
jurisdiction  of  the  offense:  Id. 

Action  on  official  undertaking  is  not  an  action  to  recover 
fines  and  forfeitures  under  the  statute  allowing  the  dis- 
trict attorney  ten  per  centum:  Claim  of  Ison,  6  Or.  469. 

Fines  on  conviction  for  selling  liquor  to  Indians  can  only 
be  collected  in  a  civil  action:  Fowler  v.  United  States,  1 
W.  T.  3. 
Fixtures. 

The  IFue  rule  to  determine  what  are  fixtures  is  the  char- 
acter of  the  act  and  the  intention  in  putting  the  struc- 
ture in  place:  Doscher  v.  Blackiston,  7  Or.  143;  Oregon 
R'y  &  N.  Co.  V.  Mosier,  14  Or.  519. 

Person  who  enters  another's  land  with  the  intention  of 
holding  adversely  cannot,  after  ouster,  remove  a  build- 
ing erected  by  him,  though  of  wood  resting  on  posts  or 
blocks:  Id. 

The  old  rule  that  all  things  annexed  to  the  realty  are  fix- 
tures is  much  relaxed:  Oregon  R'y  &  N.  Co.  v.  Mosier, 
14  Or.  519. 


2S8  Fixtures. 

Fixtures  (continued). 

A  railroad  track  built  by  a  company,  which  entered  under 
a  color  of  right,  and  which  was  not  a  mere  trespasser, 
held  not  a  fixture:  Id. 
Forbearance.     See  Bills  and  Notes;  Suretyship. 
Forcible  Entry  and  Detainer.     See  Landlord  and  Ten- 
ant. 

Title  to  land  not  inquired  into  in  the  action:  Shortess  v. 
Wirt,  1  Or.  90. 

Verdict  for  plaintiff  held  to  be  proper  in  form:  Altree  v. 
Moore,  1  Or.  350. 

Defendant  cannot  set  up  title  paramount;  possession  is 
the  only  issue:  Id. 

In  ejectment,  plaintiff  must  set  forth  in  his  complaint  the 
nature  of  his  estate  in  the  premises;  otherwise  his  action 
is  regarded  as  forcible  entry  and  detainer:  Thompson 
V.  Wolf,  6  Or.  308. 

Justices'  Courts  have  jurisdiction  to  the  exclusion  of  Cir- 
cuit Courts:  Id. 

The  object  of  the  statute  is  to  prevent  and  punish  the  use 
of  forcible  and  violent  means  of  obtaining  or  holding 
possession,  irrespective  of  the  question  of  actual  title: 
Taylor  v.  Scott,  10  Or.  483. 

Entry  having  been  peaceful,  the  detainer  must  be  proved 
to  have  been  manifested  by  a  show  of  actual  force:  Id.; 
Harrington  v.  Watson,  11  Or.  143. 

Complaint  sufficient  if  it  follows  the  statute;  need  not  al- 
lege service  of  notice  to  quit:  Chung  Yow  v.  Hop  Chong, 
11  Or.  220. 

Service  of  notice  to  quit  may  be  proved  by  parol :  Id. 

What  sufficient  description  of  property  in  notice:  Id. 

Forcible  entry  and  detainer  is  not  the  remedy  by  widow 
to  gain  possession  of  the  dwelling-house  for  her  quaran- 
tine: Aiken  v.  Aiken,  12  Or.  203. 

Undertaking  for  twice  the  rental  value  of  the  premises  is 
a  prerequisite  to  an  appeal  by  a  defendant  from  a  judg- 
ment against  him:  Danvers  v.  Durkin,  14  Or.  37. 
Foreclosure.     See  Mortgages. 
Foreign  Law.     See  Common  Law;  Evidence. 
Forfeiture.     See  Eminent  Domain;  Fines  and  Forfeitures; 

Usury. 
Former  Adjudication.  .  See  Res  Judicata. 


Fraud  and  Deceit.  289 

Forgery. 

Receipt  for  sixty-five  dollars  is  not  evidence  to  prove  al- 
legation in  indictment  of  forging  one  for  sixty  dollars: 
Shirley  v.  Oregon,  1  Or.  269. 

A  note  signed  by  one  person  with  the  name  of  another 
under  the  latter's  direction  is  genuine  note  of  the  latter: 
State  V.  Lurch,  12  Or.  95. 

Evidence  of  the  genuine  signature  of  name  signed  to  note, 
for  comparison,  when  admissible:  State  v.  Lurch,  12 
Or.  99. 

Intent  to  defraud  sufficient,  though  no  defrauding  is 
proved:  Id. 

Proof  that  signature  to  note  is  simulated  and  apparently 
in  different  handwriting  from  the  body  of  the  note, 
when  admissible:  Id.;  S.  C,  12  Or.  104. 

Indictment  need  not  name  the  person  defrauded;  if  named, 
must  be  proved  as  alleged:  Id. 
Former  Recovery.     See  Res  Judicata. 
Franchise.     See  Corporations;  Ferries;  Eminent  Domain. 

An  office  is  not  a  franchise  giving  vested  rights  to  fees: 
and  term  in  officer:  Oregon  v.  Pyle,  1  Or.  149. 

A  ferry  franchise  is  subject  to  regulation  of  rates  by  future- 
legislation:  Stephens  and  Frush  v.  Powell,  1  Or.  283. 

Usurpation  of  franchise  by  corporations  is  to  be  remedied, 
by  action  in  the  name  of  the  state:  Kelly  v.  People's 
Trans.  Co.,  3  Or.  189. 

Equity  alone  can  protect  the  franchise  of  a  road  company 
against  proceeding  to  lay  out  county  road:  C.  &  G.  Road 
Co.  V.  Douglas  County,  5  Or.  280. 

Grant  of  a  franchise  strictly  construed  against  grantee,, 
and  nothing  passes  by  implication;  it  is  not  exclusive- 
unle^  made  so  by  the  grant  itself:  C.  &  G.  Road  Co. 
V.  Stephenson,  8  Or.  263. 

"Whether  ferry  franchise  is  assignable,  quaere:  Montgom- 
ery V.  Multnomah  R'y  Co.,  11  Or.  344;  S.  C,  12  Or.  25; 
Hackctt  V.  Multnomah  Railway  Co.,  12  Or.  124. 

Corporation  may  be  joint  owner  with  individuals  in  a 
ferry  franchise:  Hackett  v.  Multnomah  Railway  Co., 
12  Or.  124. 
Fraud  and  Deceit. 

To  set  aside  judgment,  bill  must  show  specific  fraud:  Sny- 
der V.  Vannoy  and  Hyland,  1  Or.  344. 
Or.  Dig.— 19 


290  Fraud  and  Deceit. 

Fraud  and  Deceit  (continued). 

Fraud,  accident,  or  mistake  must  appear,  or  equity  will 
not  relieve  from  ignorance  of  fact:  Fahie  v.  Pressey,  2 
Or.  23. 

Patent  to  land  from  the  United  States  may  be  attacked 
for  fraud  and  set  aside:  Stark  v.  Stark,  2  Or.  118. 

Fraud  in  procuring  judgment  by  confession  should  not  be 
determined  on  motion  and  affidavit:  Miller  v.  Bank  of 
British  Columbia,  2  Or.  291;  Miller  v.  Or.  City  Mfg. 
Co.,  3  Or.  24. 

Issues  of,  submitted  to  a  jury  in  equity  suit:  Hedges  v. 
Paquett,  3  Or.  77. 

Fraud  or  mismanagement  of  directors  of  corporation  not 
reviewed  unless  there  is  cause  for  winding  up  corpora- 
tion: Id. 

To  avoid  contract,  misrepresentations  must  be  of  facts 
and  have  been  acted  upon:  Or.  Central  R.  R.  Co.  v, 
Scoggin,  3  Or.  161. 

Arrest  in  civil  cases  is  limited  to  cases  of  fraud  designated 
in  statute:  Norman  v.  Zieber,  3  Or.  197. 

Mental  weakness  and  inadequacy  of  consideration  com- 
bined give  equity  jurisdiction  to  set  aside  conveyance 
on  the  ground  of  undue  influence:  Scovili  v.  Barney,  4 
Or.  288. 

Party  conveying  to  defraud  creditors,  if  of  weak  mind, 
may  have  his  conveyance  set  aside:  Id. 

Party  may  show  that  deed  of  commissioners  of  school 
land  was  obtained  by  fraud:  Hurst  v.  Ilawn,  5  Or. 
275. 

The  essential  allegations  of  a  complaint  on  false  represen- 
tations: Rolfes  V.  Russel,  5  Or.  400;  Horrell  v.  Man- 
ning, 6  Or.  413;  Smith  v.  Griswold,  6  Or.  440. 

Knowledge  of  the  falsity  must  be  alleged  and  proved: 
Smith  V.  Cox,  9  Or.  327. 

Must  have  been  asserted  as  facts,  and  not.opinions,  and 
have  l)een  known  untrue:  Willamette  Co.  v.  Gordon,  6 
Or.  175. 

Fraud,  as  a  ground  for  reformation,  will  not  be  considered 
where  complaint  merely  alleges  mistake:  Stephens  v. 
Murton,  6  Or.  193;  but  see  Baldock  v.  Johnson,  14  Or. 
542. 

Party  must  have  relied  upon  and  been  misled  by  the 
false  representations:  Dunning  v.  Cresson,  6  Or.  241; 


Fraud  and  Deceit.  291 

Fraud  and  Deceit  (continued), 

Horrell  v.  Manning,  G  Or.  413;  Nicolai  v.  Lyon,  8  Or. 
56. 

Where  an  estate  is  indebted  to  creditors,  the  administra- 
tor is  a  trustee  for  the  creditors,  and  may  show  that  a 
bill  of  sale  of  chattels  made  by  his  intestate  fraudu- 
lently was  intended  aa  a  chattel  mortgage:  Bartel  v. 
Lope,  G  Or.  321. 

Where  a  transaction  can  be  explained  without  imputation 
of  fraud,  fraud  is  not  to  be  presumed:  Hurford  v.  Har- 
ned,  G  Or.  362. 

Retention  of  chattels  by  vendor  after  sale  creates  a  dis- 
putable presumption  of  fraud  as  against  creditors,  and 
the  question  of  fraud  should  be  left  to  the  jury:  Moore 
V.  Floyd,  4  Or.  101;  McCully  v.  Swackhamer,  6  Or.  438. 

Equity  will  entertain  jurisdiction,  in  case  of  fraudulent 
sale,  where  deceit  is  alleged,  although  an  action  for  the 
deceit  would  lie:  Smith  v.  Griswold,  6  Or.  440. 

Nature  and  weight  of  evidence  sufficient  to  set  aside  a  will 
for  fraud  and  undue  influence:  Greenwood  v.  Cline,  7 
Or.  17;  Hubbard  v.  Hubbard,  7  Or.  42. 

Notice  of  fraud  as  affecting  purchaser  of  note  before  matu- 
rity: De  Lashmutt  v.  Everson,  7  Or.  212. 

Sufficiency  of  evidence  to  prove  fraud  between  executor 
and  purchaser  at  executor's  sale,  whereby  the  pur- 
chaser obtained  the  property  for  less  than  its  value: 
Brown  v.  Brown,  7  Or.  285. 

Where  a  fiduciary  relation  exists,  the  burden  is  on  the 
grantee  to  show  a  deed  made  to  him  was  not  obtained 
by  undue  influence:  Gilmore  v.  Gilmore,  7  Or.  374. 

Between  parties  engaged  to  be  married,  it  is  presumed 
the  man  exercises  commanding  influence:  Id. 

Equity  will  not  relieve  from  a  fraudulent  act  which 
worked  no  injury:   Caples  v.  Steel,  7  Or.  491. 

Purchaser  of  land  is  not  required  to  disclose  his  knowl- 
edge of  a  mine  thereon  to  the  vendor:   Id. 

But  a  willful  misstatement  of  the  facts  misleading  the 
vendor  will  render  the  sale  voidable:  Id. 

Fraudulent  concealment  by  woman  at  time  of  marriage 
that  she  had  been  the  mother  of  an  illegitimate  child, 
no  ground  for  annulling  marriage:  Smith  v.  Smith,  8 
Or.  100. 


292  Fraud  and  Deceit. 

Fraud  and  Deceit  (continued). 

Undue  influence  must  be  clearly  shown  in  order  to  war- 
rant a  court  of  equity  in  setting  aside  a  deed:  Biglow  v. 
Leabo,  8  Or.  147. 

Board  of  equalization  may  try  question  of  fraud  in  bor- 
rowing and  loaning  to  escape  taxation:  Poppleton  v. 
Yamhill  County,  8  Or.  337. 

Complaint  is  insufficient  merely  charging  fraudulent  con- 
duct not  afifecting  rights  of  plaintiflf:  Weiss  v.  Bethel, 
8  Or.  522. 

Fraudulent  concealment  of  property  by  bankrupt  until 
his  discharge  does  not  prevent  creditor,  not  made  a 
party,  from  impeaching:   Besser  v.  Joyce,  9  Or.  310. 

It  is  no  fraud  on  creditors  for  husband  to  bar  his  right  to 
curtesy  by  joining  his  wife  in  her  deed,  on  sale  of  her 
separate  property:  Id. 

To  prove  defense  of  fraud  in  action  on  bond  for  a  deed, 
proof  that  the  plaintiff  had  been  shown  the  boundaries 
intended,  and  knew  the  description  in  the  bond  to  be 
different  from  that  of  the  land  intended  to  be  conveyed, 
is  admissible:   Smith  v.  Cox,  9  Or.  475. 

instruction  as  to  duty  of  one  obtaining  such  bond  from 
an  ignorant  and  infirm  person  in  reading  over  and  ex- 
plaining the  same  to  him:   Id. 

Equity  jurisdiction  of  fraud,  and  remedies  in  equity  for 
actual  and  constructive  fraud:  Shively  v.  Parker,  9  Or. 
500. 

Facts  held  not  to  prove  undue  influence  over  woman  sign- 
ing stipulation  in  divorce  case:  Savage  v.  Savage,  10 
Or.  331. 

Judgment  obtained  by  fraud  in  Justice's  Court,  against  a 
defendant  having  a  good  defense,  set  aside  in  equity: 
Marsh  v.  Perrin,  10  Or.  364. 

In  a  complaint  in  an  action  for  deceit,  the  pleader  must 
show  wherein  the  representations  were  false;  must  state 
facts,  and  not  conclusions:  Specht  v.  Allen,  12  Or.  117; 
Misner  v.  Knapp,  13  Or.  135. 

Inadequacy  of  price  may  be  so  gross  as  itself  to  fur- 
nish satisfactory  evidence  of  fraud:  Archer  v.  Lapp, 
12  Or.  196. 

Obtaining  the  property  of  an  aged  person  on  promise  of 
paying,  but  without  Consideration,  may  be  fraudulent 
conduct  rendering  the  conveyance  void:  Id. 


Fraud  and  Deceit.  293 

Fraud  and  Deceit  (continued). 

Undue  influence  which  accomplishes  its  object  is  illegal, 
in  whatever  manner  it  was  employed;  each  case  must 
be  judged  by  its  own  circumstances:  Parmcntier  v. 
Pater,  13  Or.  121;  Ward  v.  Buckley,  1  W.  T.  279; 
Hodgdon  v.  Crosby,  1  W.  T.  578. 

Agent  purchasing  land  from  principal,  without  disclosing 
a  better  offer  previously  received  from  another  person, 
takes  undue  advantage,  and  the  deed  will  be  set  aside: 
Savage  V.  Savage,  12  Or.  459. 

False  and  fraudulent  representations  vitiate  accounts 
stated:  Kinney  v.  Heatley,  13  Or.  35. 

Wife  carrying  on  business  in  her  own  name  may  employ 
her  husband,  and  such  employment  is  not  a  fraud  on 
his  creditors,  and  does  not  subject  her  property  to  his 
debts:   King  v.  Voos,  14  Or.  91. 

Husband  may  give  his  services  in  such  case  without  com- 
pensation:  Id. 

But  such  arrangement  is  open  to  suspicion  of  fraud:   Id. 

Question  of  fraud  in  guardian's  sale  can  be  raised  only 
by  the  pleadings:  Walker  v.  Goldsmith,  14  Or.  125. 

Answer  charging  fraud  and  misrepresentation  as  defense 
in  an  action  upon  a  contract  of  guaranty  under  seal, 
held  not  to  state  a  defense  in  law:  Marx  v.  Schwartz, 
14  Or.  177. 

Lack  of  adequate  consideration  will  have  an  influence  in 
deciding  whether  a  deed  ought  to  stand  or  not,  when  it 
appears  that  the  grantor  did  not  know  the  extent  of 
the  interest  or  estate  conveyed:  Baldock  v.  Johnson,  14 
Or.  542. 

Child  is  presumed  to  be  under  the  influence  of  parent  so 
lorrg  as  the  dominion  of  the  parent  lasts,  and  in  accept- 
ing a  gift  of  land  parent  is  presumed  to  influence:  Id. 

So  where  the  daughter  seventeen  years  of  age,  recently 
married,  still  lived  with  grantee,  her  mother,  her  deed 
made  without  consideration,  in  ignorance  of  her  rights, 
ought  not  stand:  Id. 

If  'parties  do  not  treat  on  equal  grounds,  equity  will 
interfere  for  the  protection  of  the  weaker:  Ward  v. 
Buckley,  1  W.  T.  279. 
Equity  will  modify  bargain  so  far  as  necessary  to  protect 
the  weaker  party,  and  for  euch  purpose  may  rescind 
the  contract:  Id. 


294  Fraud  and  Deceit. 

Fraud  and  Deceit  (continued). 

Where  equity  grants  relief  to  those  who  have  been  over- 
reached, it  exacts  equity  as  the  condition  upon  which 
relief  is  granted:  Id. 

Right  of  a  resident  creditor  to  collaterally  attack  a  dis- 
charge in  bankruptcy  for  fraud:  Rosenthal  v.  Schneider, 
2  W.  T.  144. 

How  far  fraud  and  mistake  are  defense  upon  action  on 
account  stated:  Baxter  v.  Waite,  2  W.  T.  228. 

Vendor  who  fraudulently  shows  to  vendee  lots  of  great 
value,  representing  them  to  be  the  lots  to  be  sold, 
whereas  the  latter  are  worthless,  and  thereby  defrauds 
vendee,  is  liable  to  action  for  damages  for  the  difference 
in  value:  Phinney  v.  Hubbard,  2  W.  T.  369. 
Fraudulent  Conveyances. 

Absolute  bill  of  sale  unaccompanied  by  delivery  is  void 
as  against  creditors:  Monroe  v.  Hussey  and  Burbank,  1 
Or.  188. 

Marriage  is  valuable  consideration;  deed  not  presumed 
fraudulent:  Bonscr  v.  Miller,  5  Or.  110. 

Such  deed  may  be  set  aside  for  fraud,  where  both  parties 
concur  in  the  fraud:  Id. 

Wife's  separate  property,  not  registered,  is  presumed  the 
property  of  husband:  Elfelt  v.  Hinch,  5  Or.  255. 

Positive  and  express  proof  is  not  required,  before  a  con- 
veyance will  be  set  aside;  it  may  be  deduced  from  cir- 
cumstances:  Id. 

Voluntary  conveyance  by  husband  to  wife  presumed 
fraudulent  as  to  existing  creditors:  Id. 

Judgment  creditors  may  unite  to  set  aside  such  convey- 
ance: Id. 

Conveyance  to  daughter  for  services  as  housekeeper, 
where  price  was  inadequate,  held  voluntary  for  ex- 
cess, as  against  rights  of  divorced  wife:  Barrett  v.  Bar- 
rett, 5  Or.  411. 

Payment  by  grantee,  of  existing  mortgage  recited  in  the 
deed,  is  a  valuable  consideration  as  against  creditors: 
Miles  V.  Miles,  6  Or.  266. 

Onus  is  on  person  attacking  to  prove  fraud:  Kruse  v. 
Prindle,  8  Or.  158. 

Assignment  for  benefit  of  creditors  preferring  unsecured 
creditor  is  not  prima /acie  fraudulent:  Id. 


Fraudulent  Conveyances.  295 

Fraudulent  Conveyances  (continued). 

Fraud  must  have  been  participated  in  by  grantor  and 
grantee:  Id. 

Where  the  creditor's  claim  is  only  three  dollars,  equity 
will  not  set  aside  deed  said  to  be  fraudulent,  at  his 
suit:  Hamburger  v.  Grant,  8  Or.  181. 

Assignee  for  benefit  of  creditors  has  no  power  to  set  aside 
fraudulent  conveyance  made  by  assignor  before  assign- 
ment, but  may  resist  lien  claimed  on  goods  in  his 
hands:  Jacobs  Bros.  &  Co.  v.  Ervin,  9  Or.  52. 

Complaint  to  set  aside,  need  not  allege  insolvency  or 
lack  of  other  property,  where  it  alleges  execution  re- 
turned unsatisfied:  Page  &  Co.  v.  Grant,  9  Or.  116. 

Where  there  is  actual  fraud,  conveyance  is  void  as  to  both 
existing  and  subsequent  creditors:  Id. 

Lien  by  attachment  without  judgment  or  execution  is  suf- 
ficient to  support  a  creditor's  bill  alleging  fraud  as  a 
ground  to  set  aside  decree  and  sale  thereunder:  Bremer 
&  Co.  V.  Fleckenstein  and  Mayer,  9  Or.  2G6. 

Whatever  was  said  by  the  parties  to  the  sale  at  the  time 
thereof,  tending  to  show  the  character  of  the  transaction, 
is  admissible  as  evidence:  Bergman  and  Berry  v.  Twi- 
light, 10  Or.  337. 

Execution  creditor  will  not  be  restrained  in  equity  from 
levying  on  whatever  interest  a  fraudulent  grantor  may 
have:  Coolidge  and  McClaine  v.  Forward  and  Ileneky, 
11  Or.  118. 

Purchaser  in  good  faith  for  valuable  consideration  of  tbe 
property  of  an  insolvent  corporation  does  not  take  the 
property  charged  with  the  payment  of  the  debts  of 
the  corporation:  Branson  v.  Oregon  R'y  Co..  11  Or.  IGl. 

Where  a  valuable  consideration  has  been  p:  'd,  creditor 
seeking  to  set  aside  sale  must  prove  that  I'.ie  grantee 
had  actual  notice  of  the  fraud,  but  such  notice  may 
be  inferred  from  the  circumstances:  Coolidge  and 
McClaine  v.  Forward  and  Ileneky,  11  Or.  327. 

Person  contracting  for  machinery,  and  before  delivery  con- 
veying away  his  property,  may  be  shown  by  the  vendor 
to  have  made  the  conveyance  with  intent  to  defraud 
him:  Crawford  v.  Beard,  12  Or.  447. 

Subsequent  creditor  must  show  that  the  creation  of  the 
debt  was  contemplated,  and  the  conveyance  made  with 
intent  to  defraud  such  creditor:  Id. 


296  Fraudulent  Conveyances. 

Fraudulent  Conveyances  (continued). 

Presumption  of  fraudulent  intent  from  the  effect  on  col- 
lection of  debts  owing  by  the  grantor,  and  the  result  of 
placing  his  property  beyond  reach  of  process:  Id. 

Constructively  fraudulent  deed  maybe  permitted  to  stand 
as  security  for  actual  consideration:  Id. 

To  set  aside  a  fraudulent  general  assignment  for  benefit  of 
creditors  at  suit  of  a  creditor,  the  creditor  must  have  ob- 
tained a  lien  by  judgment  or  otherwise:  Dawson  v.  Cof- 
fey, 12  Or.  513. 

Attaching  creditor  may  levy  on  property  fraudulently  as- 
signed, by  taking  it  from  the  hands  of  the  debtor,  or  by 
garnishment  if  in  possession  of  assignee:  Id. 

Creditor  may  obtain  judgment  at  law,  and  after  exhaust- 
ing the  ordinary  legal  remedies,  begin  a  creditor's  suit 
in  equity:  Id. 

Ordinarily,  legal  remedies  must  be  exhausted  before  re- 
sorting to  equity,  in  case  of  fraud  under  the  insolvent  law; 
otherwise,  where  a  particular  fund  is  set  aside  for  a  class 
of  debts:  Id. 

Creditor,  whose  claim  has  been  presented  and  allowed  by 
assignee,  may  resort  to  equity  to  prevent  fraudulent  mis- 
application of  the  funds:  Id. 

Usually  suit  to  reach  equitable  assets  cannot  be  maintained 
until  means  at  law  have  been  exhausted:  ^Multnomah 
St.  R'y  Co.  V.  Harris,  13  Or.  198. 

But  where  the  debtor  has  fraudulently  encumbered  or 
clouded  the  title  of  real  property,  a  judgment  creditor 
may  proceed  at  once  in  equity  to  have  the  conveyance 
set  aside:  Id. 

Merely  taking  deed,  absolute  in  form,  intended  as  a  mort- 
gage, where  there  is  no  concealment  as  to  the  character 
of  the  transaction,  is  not  ground  for  impeachment: 
Haseltine  v.  Espey,  13  Or.  301. 

Recording  such  instrument  is  suflBcient  notice  of  grantee's 
claim;  semhle,  it  could  not  be  recorded  as  a  mortgage: 
Id. 

The  evidence  considered  and  held  not  to  prove  intent  to 
defraud  creditors:  Holladay  v.  Ilolladay,  13  Or.  523. 

Conveyance  of  whole  estate  to  brotber  on  payment  of  an 
alleged  debt,  by  one  deeply  indebted  elsewhere,  is  sus- 
picious, and  the  grantor  should  establish  by  clear  proof 
the  consideration:  Marks  &  Co.  v.  Crow,  14  Or.  382. 


Gaming.  297 

Fraudulent  Conveyances  (continued). 

In  such  case,  existing  and  subsequent  creditors  alike  may 

have  relief:  Id. 
The  lien  created  by  attachment  is  sufficient  upon  which  to 

base  suit  in  equity  in  the  nature  of  a  creditor's  suit  to 

set  aside  fraudulent  conveyances  and  encumbrances: 

Dawson  v.  Sims,  14  Or.  5G1. 
Attaching    creditor  is  entitled  to  injunction   to  prevent 

foreclosure  by  wife  of  a  fraudulent  chattel  mortgage  on 

the  goods  of  husband:  Meacham  Arms  Co.  v.  Svvarts,  2 

W.  T.  412. 
After  such  creditor  obtains  judgment,  he  may  file  supple- 
mental bill  in  the  injunction  suit,  showing  that  fact:  Id. 
Gaming.     See  Wagers. 

Pack  of  cards  is  a  "gambling  device"  within  the  statute: 

Frisbie  v.  State,  1  Or.  264. 
The  terms  "suffering  such  gambling  device  to  be  set  up 

and  used"  are  proper  to  charge  offense:  Id. 
Betting  on   a  game  of  cards   not  gambling  within  the 

statute:  Reramington  v.  State,  1  Or.  281. 
Game  of  poker  not  a  "gambling  device"  within  the  stat- 
ute: State  V.  Mann,  2  Or.  238. 
Said  statute  is  void  for  not  enumerating  and  describing 

the  devices  prohibited:  Id. 
Dealing,  playing,  and  carrying  on  faro  may  be  alleged 

conjunctively  as  one  offense  under  the  act  of  1876  (c.  45, 

Hill's  A.  L.):  State  v.  Carr,  6  Or.  133. 
Indictment  need  not  describe  the  manner  of  playing;  the 

statutory  language  to  charge  the  offense  is  sufficient: 

Id.;  Schilling  V.  Territory,  2  W.  T.  283. 
Proceeding  by  indictment  is  an  "action  at  law"  to  recover 

fines,  within  the  act:  Id. 
Indictment  need   not  name  the  game  or  the  device  by 

which  it  is  played:  State  v.  Gitt  Lee,  6  Or.  425. 
Must  describe  the  device,  and  allege  that  it  was  adapted 

and  used  for  playing  games,  etc.:  Id. 
Statute  of  1876  (c.  45,  Hill's  A.  L.)  is  sufficiently  definite; 

it  need  not  name  the  game  or  device:  Id. 
A  section  of  said  statute,  giving  double  damages  to  person 

losing,  is  remedial,  not  penal  or  criminal,  and  the  action 

to   recover  the  damages  is  a  civil  action:    O'Keefe  v. 

Weber,  14  Or.  55. 


298  Gaming. 

Gaming  (continued). 

Said  act  is  not  unconstitutional  as  embracing  subjects  not 
expressed  in  the  title,  and  the  title  expresses  but  one 
subject:  Id. 

Though  containing  both  criminal  and  civil  remedies,  the 
object  of  each  is  to  "punish  and  prevent  gambbng"  as 
expressed  in  the  title:  Id. 
Game  Laws. 

Act  of  1880  to  protect  salmon  does  not  apply  to  the  Colum- 
bia River:  State  v.  Sturgess,  9  Or.  537;  S.  C,  10  Or.  58. 

Game  law,  extending  to  but  five  counties,  does  not  contra- 
vene the  Organic  Act,  which  forbids  granting  of  special 
privileges:  Hayes  v.  Territory,  2  W.  T.  28G. 
Garnishment. 

A  judgment  debtor  cannot  be  garnished  by  creditors  of 
the  judgment  creditor:  Norton  v.  Winter  and  Lattimer, 
1  Or.  47;  Despain  v.  Crow,  14  Or.  404. 

Earnings  of  a  judgment  debtor,  paid  in  by  garnishee 
voluntarily,  though  exempt,  need  not  be  ordered  repaid 
to  debtor  by  justice:  Opitz  v.  Winn,  3  Or.  9. 

Appeal  by  garnishee  after  paying  judgment  under  protest 
does  not  relieve  sheriff  from  his  duty  to  apply  the  money 
to  satisfaction  thereof:  Dufernoy  v.  Stitzel,  3  Or.  58. 

Defendant  in  action  by  husband  and  wife  on  wife's  note, 
being  garnished  by  creditors  of  husband  who  claim  the 
note  is  his,  may  file  bill  of  interpleader:  Fahie  v.  Lind- 
say, 8  Or.  474. 

Right  of  garnishee  to  enjoin  on  account  of  defects  in  the 
proceedings  against  defendant:  Ladd  and  Bush  v. 
Ram  shy,  10  Or.  207. 

Garnishment  acts  only  upon  existing  legal  rights  of  de- 
fendant that  could  be  enforced  by  him  in  an  action  at 
law  in  his  own  name:  0.  R.  &  N.  Co.  v.  Gates,  10  Or. 
514;  Baker  and  Smith  v.  Eglin,  11  Or.  333. 

Where  without  negligence  the  garnishee  answers  that  he 
ewes  defendant,  and  subsequent  to  judgment  he  ascer- 
tains that  he  was  mistaken,  he  is  entitled  to  relief  in 
equity:  Id. 

MoWgagee's  interest  in  chattels  before  foreclosure  is  not 
S'.ibject  to  garnisliment:  Knowles  v.  Herbert,  11  Or.  54; 
B  C.  ]  1  Or.  240. 

A  cor]>oration  which  is  a  etockholder  holding* property  of 


Garnishment.  299 

Gurnishment  (oontinued). 

another  corporation,  not  dividends,  may  be  garnished 
on  judgment  against  the  latter  company:  Hughes  v. 
Or.  R'y  Co.,  11  Or.  158. 

Attaching  creditors,  as  against  garnishee,  acquire  the 
rights  of  the  debtor,  and  no  more:  Baker  and  Smith  v. 
Eglin,  11  Or.  333. 

One  for  a  valuable  consideration  agreeing  to  pay  certain 
debts  of  another  cannot  be  garnished  at  suit  of  other 
creditors  of  the  latter:  Id. 

Proceedings  supplemental  to  execution  against  garnishee 
are  proceedings  at  law,  and  notice  of  appeal  must  al- 
lege errors  sought  to  be  reviewed  on  appeal:  Williams 
V.  Gallick,  11  Or.  337. 

The  order  to  appear  and  answer  under  oath  must  be 
served  personally,  and  not  on  an  attorney,  but  appear- 
ance of  the  garnishee  at  the  hearing  is  equivalent  to 
personal  service:  Carter,  Rice,  &  Co.  v.  Koshland,  12 
Or.  492. 

Delive-y  by  the  officer  of  a  copy  of  the  writ  to  the  gar- 
nishee, and  a  notice  not  specifying  the  identical  prop- 
erty, but  all  debts,  property,  etc.,  in  general  language,  is 
a  valid  garnishment:  Id. 

Upon  taking  a  judgment  in  the  attachment  suit  ordering 
sale  of  the  property  attached,  pursuant  to  act  of  1878 
(sec.  157,  Hill's  A.  L.),  there  can  be  no  further  subse- 
quent judgment  against  the  garnishee:  Id.  See  S.  C, 
13  Or.  G15. 

After  judgment  in  the  attachment  suit,  garnishee  pro- 
ceedings are  merely  a  means  of  discovery:  Id. 

Property  in  the  hands  of  an  executor  in  his  representative 
capacity  is  in  custody  of  law,  and  is  not  subject  to  gar- 
nishment: Harrington  v.  La  Rocque,  13  Or.  344. 

But  after  order  of  distribution  has  been  made,  it  is  not  in 
custody  of  law,  and  may  be  garnished:  Id. 

After  entering  judgment  against  the  debtor,  if  garnishee 
proceedings  are  pending,  and  afterward  are  fully  de- 
termined against  the  garnishee,  a  judgment  against 
the  garnishee  may  be  entered:  Carter,  Rice,  &  Co.  v. 
Koshland,  13  Or.  G15. 

Such  judgment  shall  be  for  the  value  of  the  property  to 
the  extent  of  the  judgment  and  costs:  Id. 


300  Garnishment. 

Garnisliment  (continued). 

The  form  of  such  judgment  not  being  directly  provided 
for  by  statute,  the  courts  have  power  under  the  Code  to 
adopt  a  suitable  mode:  Id. 

Property  garnished  is  in  custody  of  the  law,  and  cannot 
be  disposed  of  by  the  garnishee:  Id. 

Examination  of  garnishee  is  not  an  adversary  proceeding, 
but  is  simply  a  means  of  discovery:  Coombs  v.  Davis, 
2  W.  T.  466. 

Judge,  in  such  proceedings,  cannot  order  garnishee  to 
turn  over  property,  unless  he  admits  he  has  property  of 
defendant  in  his  possession:  Id. 

If  garnishee  claim  a  lien,  he  can  only  be  ordered  to  turn 
over  the  property  on  his  lien  be,ing  first  satisfied:  Id. 

But  scvible,  otherwise  with  certain  classes  of  property, 
making    provision,   however,    for    satisfaction   of  gar- 
nishee's lien:  Id. 
Gold  Coin.     See  Money. 
Governor.     See  Pardon. 

Power  of  appointment  to  vacant  office:  Cline  and  New- 
some  V.  Greenwood  and  Smith,  10  Or.  230. 

Governor  having  resigned,  secretary  of  state  discharging 
the  duties  of  the  office  as  provided  by  the  constitution, 
and  also  the  duties  of  secretary,  is  entitled  to  the  salary 
as  governor:  Chadwick  v.  Earhart,  11  Or.  389. 

In  such  case,  on  the  secretary's  term  of  office  expiring,  he 
is  still  acting  governor,  and  entitled  to  the  salary  aa 
such:  Id. 
Grain.     See  Warehousemen. 
Grand  Jury.     See  Jury  and  Jury  Trial. 
Grants.     See  Deeds;  Public  Lands. 
Guaranty.     See  Bills  and  Notes. 

When  and  how  the  effect  of  a  guaranty  must  be  averred: 
Goodwin  v.  Barnhart,  1  Or.  215. 

Undertaking  of  guarantors  to  guarantee  the  performance 
of  a  contract  by  another,  and  to  indemnify  against  loss, 
construed:  Ilildebrand  v.  Bloodsworth,  12  Or.  75. 

The  consideration  for  contract  need  not  be  a  benefit  to 
guarantor:  Id. 

Answer  charging  fraud  and  misrepresentation  and  want 
of  consideration  as  a  defense  to  a  suit  on  a  contract  of 
guaranty,  held  not  to -state  facts  sufficient  to  constitute 
a  defense  in  law:  Marx  v.  Schwartz,  14  Or.  177. 


Guardian  and  Ward.  301 

Guaranty  (continued). 

Instruction  that  if  the  debt  was  the  debt  of  the  defendant, 
then  the  plaintiffs  are  not  entitled  to  recover  in  such 
suit,  was  held  to  be  outside  of  the  issues,  and  erroneous: 
Id. 

Creditor  collecting,  upon  execution  against  the  principal 
debtor,  part  of  the  debt  guaranteed,  such  amount  col- 
lected is  pro  tanto  satisfaction  of  the  guaranty:  Id. 

Contract  of  guaranty  renders  the  principal  and  guarantor 
severally  liable,  and  they  cannot  be  joined  in  one  suit: 
Tyler  v.'  T.  of  T.  A.  &  P.  U.,  14  Or.  485. 
Guardian  and  Ward. 

Guardian  may  mortgage  minor's  estate  under  subdivision 
6,  section  869,  of  the  Code  (sec.  895,  Hill's  A.  L.): 
Trutch  v.  Bunnell,  5  Or.  504;  S.  C,  contra,  11  Or.  58. 

In  foreclosure,  no  defense  that  guardian's  name  as  such 
was  signed  to  the  note  and  mortgage,  and  not  the 
minor's:  Id. 

Minors  not  adversary  parties  to  guardian  in  County  Court 
in  obtaining  leave  to  mortgage:   Id. 

Guardian  ad  litem  can  confess  judgment  for  infant:  Eng- 
lish V.  Savage,  5  Or.  518. 

Minor,  on  arriving  at  age,  receiving  proceeds  from  guar- 
dian's sale  on  partition  is  presumed  to  ratify  the  sale, 
and  is  estopped  to  deny  its  validity:  Hatcher  v.  Briggs, 
6  Or.  31;  Brazee  v.  Schofield,  2  W.  T.  209. 

County  Court  in  the  matter  of  appointing  guardians  for 
minors  and  lunatics  is  a  court  of  general  and  superior 
jurisdiction:  Monastes  v.  Catlin,  6  Or.  119. 

Such  jurisdiction  is  probate  jurisdiction  within  article  7, 

section  12,  of  the  constitution:  Id. 
GencMrl  guardian  has  power  to  appear  and  answer  for  his 
ward,  and  his  appearance  is  a  waiver  of  irregularity  in 
service  of  summons:  Ankeny  v.  Blackiston,  7  Or.  407. 
Mother  of  a  bastard  is  its  guardian,  and  is  bound  to  main- 
tain it:  Nine  v.  Starr,  8  Or.  49. 
Ward,  or  those  claiming  under  him,  cannot,  by  statute, 
in  contesting  the  validity  of  sale  of  real  property,  col- 
laterally   attack    the    appointment    of    the   guardian: 
Walker  v.  Goldsmith,  14  Or.  125. 
Where  the  question  as  to  guardian's  sale  arises  collater- 
ally, and  the  pleadings  raise  no  question  of  jurisdiction, 


302  Guardian  and  Ward. 

Guardian  and  Ward  (continued). 

and  the  proceedings  are  regular  on  their  face,  sale  must 
be  sustained:  Id. 

Guardian's  petition  for  sale  of  land,  which  states  one  suf- 
ficient ground,  will  sustain  jurisdiction  to  order  the  sale, 
though  it  also  states  another  insufficient  ground:  Id. 

Proof  of  posting  notice  of  sale  dated  prior  to  date  of  post- 
ing, clerical  error  presumed,  where  the  record  other- 
wise shows  the  fact:  Id. 

Notice  of  sale  need  not  be  published  the  four  weeks  im- 
mediately preceding  the  sale;  sufficient  if  it  be  pub- 
lished four  weeks  successively  prior  to  the  sale:  Id. 

Fraudulent  sale  can  be  attacked  only  by  direct  allega- 
tions in  the  pleadings:  Id. 

Acquiescence  by  minor  for  unreasonable  time  after  reach- 
ing his  majority  is  a  waiver  of  his  right  to  attack  for 
fraud:  Id. 

Partition  proceedings,  though  beyond  the  jurisdiction  of  a 
probate  court,  are  binding  upon  adults  and  minors  ap- 
pearing by  guardian  under  supervision  and  sanction  of 
the  Probate  Court:  Brazee  v.  Schofield,  2  W.  T.  209. 

If  guardian  acts  under  judicial  authority,  though  irregu- 
larly, his  acts  are  valid  on  collateral  attack:  Id. 

Ward  is  deemed  to  have  ratified  void  sale  of  his  property, 
if  after  attaining  full  age  he  does  not  within  reasonable 
time  disaffirm  it:  Id. 

Guardian's  sale  will  not  be  held  void  on  collateral  attack, 
though  the  description  was  indefinite  and  notice  was 
published  three  instead  of  four  weeks,  where  the  record 
sufficiently  shows  that  the  Probate  Court  was  applied 
to  upon  a  definite  matter  within  its  jurisdiction:  Id. 

Ward  having,  after  coming  of  age,  acquiesced  by  silence 
for  years,  during  which  improvements  were  made,  can- 
not attack  such  sale:  Id. 
Habeas  Corpus. 

Jurisdiction  is  generally  original,  but  in  a  sense  appellate, 
in  Circuit  Court:  Norman  v.  Zieber,  3  Or.  197. 

Jurisdiction  of  committing  magistrate  may  be  put  in  issue 
on  return  of  writ:  Id. 

Rehearing  of  the  evidence  not  a  matter  of  course,  where 
prisoner  was  held  to  bail:  Fleming  v.  Bills,  3  Or.  286. 

Informality  in   commitment  will  not  justify  discharge, 


Heirs.  303 

Habeas  Corpus  (continued). 

where  petitioner  does  not  produce  record,  though  in  his 
power  to  do  so:  Id. 

Auxiliary  writ  of  review  being  granted,  court  refused  to 
rehear  the  evidence  given  before  the  committing  magis- 
trate: Id. 

An  order  of  commitment  of  court  of  competent  jurisdic- 
tion not  void  for  error  of  fact  or  law:  Id. 

Questions  properly  triable  arise  on  the  return,  and  the 
traverse  thereto:  Merriman  v.  Morgan,  7  Or.  68. 

Irregularities  not  apparent  in  the  process,  unless  juris- 
dictional, will  not  be  inquired  into:  Id. 

The  return  is  a  pleading,  and  is  to  be  construed  and  have 
effect  as  in  an  action:  Pomeroy  v.  Lappeus,  9  Or.  865. 

Jurisdiction  is  acquired  by  the  service  of  the  writ:  Id. 

Admitting  the  prisoner  to  bail  after  service  of  the  writ 
does  not  oust  jurisdiction,  and  an  answer  or  return  al- 
leging such  fact  is  demurrable:  Id. 

Trial  of  a  cause  by  a  court  of  competent  jurisdiction  is  not 
reviewable  on  writ  of  habeas  corpus:  Ex  parte  Williams, 
1  W.  T.  240. 
Handwriting.     See  Evidence, 
Hearsay.     See  Evidence. 
Heirs.     See  Administration;  Legacies;  Public  Lands;  Wills. 

Take  title  of  realty  at  once  on  death  of  ancestor;  rights 
of  County  Court  over:  Hanner  v.  Silver,  2  Or.  336. 

Heirs  of  settler  under  donation  law,  who  dies  before  prov- 
ing, take  by  purchase,  not  by  descent:  Delay  v.  Chap- 
man, 3  Or.  459. 

The  liability  of  the  estate  acquired,  to  administration  and 
debts  of  deceased:  Id. 

Infa,at  heir  necessary  party  under  act  of  1855  on  sale  of 
realty  of  decedent:  Fiske  v.  Kellogg,  3  Or.  503. 

Heirs  of  unnaturalized  person  dying  before  patent  under 
donation  law  inherit  the  claim:  Blakesly  v.  Caywood, 
4  Or.  279. 

Take  no  title  by  the  patent  to  donation  claim,  conveyed 
by  man  and  wife  before  patent:  Dolph  v.  Barney,  5  Or. 
191. 

Are  necessary  parties  defendant  in  foreclosure  suit  against 
executors:  Renshaw  v.  Taylor,  7  Or.  315. 

Tender  by  heir  to  pay  claim  against  estate;  eflfect  on  al- 


304  Heirs. 

Heirs  (continued). 

lowance  of  order  to  sell  real  property  of  estate  to  pay 
such  claim:  Weill  v.  Clark's  Estate,  9  Or.  387. 
Highways.     See  Dedication;  Bridges;  Ferries. 

The  recorded  plat  of  a  highway  is  not  evidence  of  the  ex- 
istence of  the  road,  but  of  its  location  only:  Naylor  v. 
Beeks,  1  Or.  216. 

Such  plat  necessary  under  act  of  1854,  before  opening  of 
the  road,  unless  the  road  is  laid  upon  a  government 
survey:  Id. 

Certiorari  lies  to  bring  up  proceedings  of  County  Court  in 
laying  out  highway:  Thompson  v.  Multnomah  County, 
2  Or.  34. 

Petition  of  twelve  householders  and  legal  notice  are  juris- 
dictional in  laying  out:  Id.;  Johns  v.  Marion  County, 
4  Or.  46. 

Person  who  signed  petition  is  not  "  disinterested  "  house- 
holder, and  therefore  incompetent  to  act  as  a  viewer: 
Id. 

Ferry  landings  in  the  line  of  highway  are  a  part  of  the 
highway:  Mills  v.  Learn,  2  Or.  215;  Montgomery  v. 
Multnomah  R'y  Co.,  11  Or.  344;  S.  C,  12  Or.  25. 

County  liable  for  negligence  of  road  supervisor:  McCalla 
V.  Multnomah  County,  3  Or.  424. 

Petition  and  notice  necessary  to  give  County  Court  juris- 
diction to  lay  out:  Johns  v.  Marion  County,  14  Or.  46. 

Petition  must  describe  terminal  points  with  certainty:  Id. 

Record  of  County  Court  must  show  jurisdiction  affirm- 
atively: State  V.  Officer,  4  Or.  180.  " 

Not  sufficient  to  recite  posting  of  notice  to  satisfaction  of 
of  court;  must  state  the  facts:  Id. 

Statute  authorizing  establishment  of  private  road  over 
land  of  another  without  consent,  void:  Witham  v.  Os- 
burn,  4  Or.  318. 

A  person  who  repairs  a  county  bridge  or  highway  without 
legal  authority  has  no  right  to  compensation:  Spring- 
field Mining  Co.  v.  Lane  County,  5  Or.  265. 

Power  of  county  to  lay  out  a  highway  over  road  owned 
by  private  company:  C.  &  G.  Road  Co.  v.  Douglas 
County,  5  Or.  280. 

Corporation  cannot  appropriate  highway  established  by 
dedication,  without  first  attempting  to  agree  with  the 


Highways.  305 

Highways  (continued). 

County   Court    in   relation    thereto:    Douglas   County 
Road  Co.  V.  Abraham,  5  Or.  318. 

A  slight  change  in  the  thread  of  the  road  will  not  defeat 
the  rights  of  the  public:  Id. 

Paramount  control  of  streets  in  city  and  country  roads  is 
in  legislature:  East  Portland  v.  ^Multnomah  County,  6 
Or.  62;  Multnomah  County  v.  Shker,  10  Or.  65. 

Legislature  may  transfer  its  control  of  streets  and  high- 
ways in  a  city  to  the  municipality:  Id. 

Order  denying  petition  to  lay  out  road  does  not  bar  subse- 
quent proceedings  to  establish  a  road  over  same  route: 
Kamer  v.  Clatsop  Co.,  6  Or.  238. 

Unmarried  men  may  be  householders  within  road  lawi 
Id. 

Value  of  the  land  and  damages  or  benefit  by  reason  of  the 
opening  of  the  road,  the  measure  of  damages:  Terwil- 
liger  V.  Multnomah  Co.,  6  Or.  295;  Putnam  v.  Doug- 
las Co.,  6  Or.  328. 

The  value  of  the  roadway,  extra  fences,  inconveniences,  or 
advantage,  are  to  be  estimated:  Putnam  v.  Douglas 
Co.,  6  Or.  328. 

The  advantages  may  exceed  or  equal  the  damage,  whea 
the  jury  will  find  against  the  claimant:  Id. 

Taking  private  property  for  public  use  for  roads,  without 
awarding  damages  before  deducting  benefits,  is  con- 
stitutional: Id. 

Damages  may  be  obtained  by  person  specially  injured  by- 
toll-gate  obstructing  the  road:  Milarkey  v.  Foster,  6  Or. 
378. 

What  complaint  in  such  action  is  sufficient  on  demurrer: 
Id. 

Oral'^vidence  is  admissible  to  show  the  number  of  build- 
ings and  inhabitants  at  a  place  to  prove  it  a  town 
within  the  statute,  prohibiting  toll-gates  within  the 
limits  of  a  town:  Id. 

Act  of  Congress  for  the  construction  of  the  Dalles  Military 
Road;  duty  of  company  building  road:  Schultz  v.  Mili- 
tary Road  Co.,  7  Or.  259. 

Building  the  road  of  less  width  than  prescribed  will  ren- 
der company  liable  to  person  injured:  Id. 

Such  person  can  recover,  as  carrier  of  United  States  mails^ 
Or.  Dig.— 20 


306  Highways. 

Highways  (continued). 

for  tolls  paid  on  other  roads,  when  compelled  on  account 
of  want  of  bridges  to  travel  such  other  road:  Id. 

Mail-carriers,  and  those  in  their  employ,  are  exempt  from 
tolls  on  the  Dalles  Military  Road:  Id. 

Private  corporation  may  locate  its  road  part  of  the  way 
over  a  county  road  by  making  agreement,  under  the 
statute,  with  County  Court:  D.  C.  R.  Co.  v.  C.  &  G.  R. 
Co.,  8  Or.  102. 

When  such  company  has  made  such  agreement,  it  may  so 
locate  its  road,  though  another  company,  without  such 
agreement,  has  already  appropriated  the  county  road: 
Id. 

Road  supervisor  is  sole  judge  of  the  necessity  for  taking 
.  materials  from  lands  adjoining-  or  near  the  road,  for 
repairs:  Kendall  v.  Post,  8  Or.  141. 

Equity  will  not  interfere,  where  he  does  not  oppress,  in 
the  discharge  of  such  duties:  Id. 

Party  from  whose  land  such  material  is  taken  has  his 
remedy  by  applying  to  the  County  Court  to  assess  the 
damage:  Id. 

The  statute,  section  29,  chapter  50,  Miscellaneous  Laws 
(sec.  4093,  Hill's  A.  L.),  affording  such  remedy,  is  not 
unconstitutional  for  assessing  without  jury  trial:  Id. 

Private  corporation,  locating  its  road  in  part- over  a  high- 
way, acquires  no  exclusive  right  thereto:  C.  &  G.  Road 
Co.  V.  Stephenson,  8  Or.  263. 

The  part  of  the  highway  so  located  need  not  be  resurveyed 
as  a  part  of  the  private  road:  Id. 

By  locating  on  such  highAvay,  the  corporation  does  not 
acquire  the  right  to  exclude  another  corporation,  subse- 
quently formed,  from  appropriating  and  using  the  same 
in  like  manner:  Id. 

Act  providing  for  construction  of  a  wagon  road,  held  not 
a  local  or  special  law  obnoxious  to  article  4,  section  23, 
subdivision  7,  of  the  constitution:  Allen  v.  Ilirsch,  8 
Or.  412. 

Notice  of  application  for  laying  out  a  highway  must  be 
signed  by  the  petitioners:  Minard  v.  Douglas  Co.,  9  Or. 
206;  King  v.  Benton  County,  10  Or.  512. 

Proof  of  posting  notices  should  show  the  places  where 
posted:  Id. 


Highways.  307 

Higliways  (continued). 

County  Court  has  no  power  to  confer  the  right  on  a  pri- 
vate corporation  to  establish  a  toll-gate  and  collect  toil 
on  a  public  highway,  at  a  point  not  embraced  in  the 
line  of  its  corporate   road:  State  v.    Douglas   County 
Road  Co.,  10  Or.  185. 
The  private  corporation,  obtaining   agreement  with   the 
County  Court  to  use  such  highway,  must,  on  accepting, 
actually  appropriate  and  establish  their  road  thereon: 
Id. 
Petitioners  not  signing  notice  have  no  standing  in  court, 
and  their  petition  confers  no  jurisdiction:  King  v.  Ben- 
ton County,  10  Or.  512. 
Statute  providing    for  proceedings  to  be  done  at  "next 
ensuing  "  terra  of  County  Court  means  the  regular  not 
special  appointed  term :    Tompkins,  Clackamas  County, 
11  Or.  364. 
Term  having  been  irregularly  appointed,  and  road  estab- 
lished thereat,  the  court  cannot,  by  nunc  pro  tunc  order, 
validate  the  proceedings  at  subsequent  term:  Id. 
Indictment  for  obstructing,  when  termini  must  be  alleged 

and  proved:  State  v.  Hume,  12  Or.  133. 
When  equity  will  restrain  obstructing  highway:  Luhrs  v. 
Sturtevant,  10  Or.  170;  Smith  v.  Gardner,  12  Or.  221; 
Walts  V.  Foster,  12  Or.  247. 
In  action  for  injury  sustained  in  falling  from  an  unguarded 
elevated  plank  road,  plaintiff  need  not  plead  or  prove 
want  of  contributory  negligence:  Grant  v.  Baker,  12  Or. 
329. 
Merely  transferring,  by  the  legislature,  the  control  over  a 
county  road  to  a  city  does  not  make  it  a  street:  Heiple 
V.  East  Portland,  13  Or.  97. 
Road  is  a  public  highway;  street  is  a  road  in  a  city  or 

village:  Id. 
Use  and  improvement  of  a  road  within  city  limits  of  a 
city  is  not  sufficient  to  prove  acquiescence  of  abutting 
owners  to  the  use  thereof  as  a  street,  under  plea  of  stat- 
ute of  limitations:  Id. 
Legislature  has  authority  to  establish  road  from  Olympia 
to  Monticello,  and  require  counties  through  which  it 
passes  to  pay  the  expense  in  proportion  to  the  miles  in 
each:  Lewis  County  v.  II ays  and  Kennedy,  1  W.  T.  109. 


308  Highways. 

Highways  (continued). 

The  fact  that  such  road  is  called  territorial  instead  of 
county  road  is  not  material:  Id. 

Under  act  of  1867,  no  appeal  lies  from  commissioners  in 
opening  or  laying  out  road  except  on  the  question  of 
amount  of  damages:  King  County  v.  Neely,  1   W.  T. 
241. 
Homesteads.     See  Public  Lands. 
Homicide.     See  Criminal  Law;  Evidence. 

Instructions  on  self-defense  held  erroneous:  Goodall  v. 
State,  1  Or.  333. 

Killing,  being  admitted  by  prisoner,  does  not  devolve  on 
him  the  necessity  of  proving  justification:  State  v.  Whit- 
ney, 7  Or.  386. 

If  one  defendant  strikes  the  blow,  the  other  being  present 
assisting  him,  both  may  be  found  guilty  of  manslaugh- 
ter under  same  indictment:  State  v.  Fitzhugh,  2  Or.  227. 

Malice  presumed  from  voluntary  use  of  weapon  intended 
for  taking  life:  State  v.  Bertrand,  3  Or.  61. 

After  proof  of  use  of  such  weapon,  excuse  and  justification 
is  defense,  and  burden  is  on  defendant:  State  v.  Con- 
nally,  3  Or.  69. 

And  it  is  not  ground  for  acquittal  that  evidence  fails  to 
show  whether  or  not  justifiable:  Id. 

Burden  of  proof  on  the  defendant  to  show  justification  by 
preponderance  of  proof:  Id. 

May  use  necessary  force  to  prevent  forcible  entry  into  de- 
fendant's house,  but  not  follow  and  shoot:  Id. 

Self-defense  does  not  justify  following  and  killing  after 
danger  has  ceased:  Id. 

Reasonable  doubt  in  homicide  case:  State  v.  Glass,  5  Or. 
73;  State  v.  Ah  Lee,  7  Or.  237;  State  v.  Anderson,  10 
Or.  448;  State  v.  Abrams,  11  Or.  169;  Smith  v.  United 
States,  1  W.  T.  262;  Leonard  v.  Territory,  2  W.  T.  381. 

The  form  of  indictment  referred  to  in  section  71  of  the 
Criminal  Code  (sec.  1270,  Hill's  A.  L.)  is  sufficient: 
State  V.  Dodson,  4  Or.  64;  Smith  v.  Smith,  5  Or.  186; 
State  V.  Wintzingerode,  9  Or.  153. 

Evidence  of  threats  of  deceased  as  proving  killing  justifia- 
ble: Id. 

Evidence  of  previous  attempt  of  deceased  to  commit  abor- 
tion on  herself,  unless  contributing  to  her  death,  not 


Homicide.  309 

Homicide  (continued). 

admissible  in  manslaughter  by  attempt  to  comm.it  abor- 
tion: State  V.  Glass,  5  Or.  73. 

Where  the  wound  is  the  immediate  cause  of  the  death,  no 
defense  that  deceased  might  have  recovered  if  greater 
skill  were  used  in  his  treatment:  State  v.  Garrand,  5 
Or.  156. 

On  trial  for  murder,  if  there  is  no  conflict  of  evidence  on 
the  point,  court  may  instruct  the  jury  that  there  is  no 
evidence  reducing  the  crime  to  manslaughter:  State  v. 
Garrand,  5  Or.  21G;  State  v.  Whitney,  7  Or.  386;  Smith 
V.  United  States,  1  W.  T.  262. 

Murder  in  the  first  degree  defined;  what  deliberation 
necessary  to  constitute:  State  v.  Ah  Lee,  8  Or.  214;  State 
V.  Anderson,  10  Or.  448;  State  v.  Abrams,  11  Or.  169; 
State  V.  Murray,  11  Or.  413;  Leonard  v.  Territory,  2 
W.  T.  381. 

Homicide  in  committing  robbery;  the  purpose  to  kill  is 
conclusively  presumed:  State  v.  Brown,  7  Or.  186. 

In  such  case  the  indictment  need  not  allege  that  the  kill- 
ing was  done  purposely:  Id. 

Indictment  in  the  form  set  forth  in  the  appendix  to  the 
Code  sufficient:  Id. 

The  killing  is  murder  in  the  first  degree  if  done  at  any 
time  before  the  taking  and  carrying  away  of  the  goods 
is  completed:  Id. 

The  defendant  was  not  prejudiced  by  an  erroneous  in- 
struction to  the  effect  that  if  the  killing  took  place  after 
the  robbery  was  completed,  the  defendant  should  be 
acquitted :   Id. 

One  shooting  at  a  person  with  intent  to  kill  him,  and 
missing  him  and  killing  another,  is  as  guilty  as  though 
"he  had  killed  the  person  at  whom  he  fired:  State  v. 
Johnson,  7  Or.  210;  State  v.  Murray,  11  Or.  413. 

Where  the  evidence  of  premeditation  is  contiicting,  it  is 
error  to  instruct  that  there  is  no  evidence  to  reduce  the 
crime  from  murder  in  the  first  degree:  State  v.  Ah  Lee, 
7  Or.  237. 

Admission  of  the  killing  does  not  admit  that  it  was  mur- 
der; instructions  assuming  such  to  be  the  case  are  erro- 
neous: State  V.  Whitney,  7  Or.  386;  State  v.  Grant,  7 
Or,  414;  State  v.  Mackey,  12  Or.  154. 


310  Homicide. 

Homicide  (continued). 

Where  the  facts  do  not  raise  a  conclusive  presumption  of 
murder  in  the  first  degree,  the  degree  of  the  guilt  must 
be  left  to  the  jury;  instruction  held  erroneous:  State 
V.  Grant,  7  Or.  414. 

View  of  premises  by  the  jury;  no  error  to  fail  to  provide 
for  presence  of  defendant  or  his  counsel  when  not  re- 
quested: State  V.  Ah  Lee,  8  Or.  214. 

Direct  proof  of  deliberation  and  premeditation  unneces- 
sary; may  be  inferred:  State  v.  Anderson,  10  Or.  448. 

General  indictment  stating  facts  constituting  crime  of 
murder  in  first  degree  will  sustain  verdict  of  guilty  in 
either  degree,  and  the  verdict  must  state  the  degree: 
State  V.  Wintzingerode,  9  Or.  153. 

Evidence  that  defendant  shortly  before  the  killing  pro- 
cured two  guns,  which  were  afterwards  found  secreted 
under  his  bed,  admissible:  Id. 

That  he  had  money  the  day  after  the  killing,  of  the  kind 
owned  by  deceased,  and  which  defendant  did  not  have 
before,  admissible:  Id. 

Threats  of  accused  as  proving  malice:  State  v.  Powers, 

10  Or.  145. 

General  language  in  a  charge,  used  by  way  of  illustration 

and  afterwards  limited  and  applied  to  case  at  bar,  is 

not  error:  State  v.  Anderson,  10  Or.  448. 
Court  having  given  definition  of  reasonable  doubt  need 

not  give  another  at  request  of  defendant:  Id. 
Deliberation  and   intention  may  be  presumed  from  the 

circumstances:  Id. 
Capital  punishment  is  not  contrary  to  article  1,  section 

15,  of  the  constitution:  Id. 
"By  then  and  there  unlawfully  and  feloniously  shooting 

him,"  held  surplusage  in  indictment  for  first  degree: 

State  V.  Abrams,  11  Or.  169. 
Deliberate  use  of  deadly  weapon  defined:  Id. 
When  negligence  causing  death  is  manslaughter:'  State  v. 

Justus,  11  Or.  178. 
Insanity  as  a  defense  to  homicide:   State  v.  Murray,  11 

Or.  413;  McAllister  v.  Territory,  1  W.  T.  360. 
Deliberately  and  with  premeditation  lying  in  wait,  and 

shooting  to  kill  one  person,  and  missing  him  but  killing 

another,  is  murder  in  the  first  degree:   State  v.  Murray, 

11  Or.  413. 


Homicide.  311 

Homicide  (continued). 

Admission  of  the  fact  of  killing  by  gunshot  docs  not  ad- 
rait  that  it  was  done  by  defendant;  instruction  assum- 
ing the  fact  as  proved  is  error:  State  v.  Mackey,  12  Or. 
154. 

Proof  that  accused  obtained  a  gun  at  a  distant  point,  and 
was  seen  at  several  places  carrying  it  toward  the  place 
of  murder,  is  not  rebutted  by  proof  that  at  one  place 

■  on  the  way  he  was  seen  without  it:  State  v.  O'Neil,  13 
Or.  183. 

Where  life  is  involved,  latitude  in  admission  of  evidence 
in  defense  should  be  given:  Id.;  State  v.  Mah  Jim,  13 
Or.  285. 

Indictment  charging  murder  at  common  law  is  sufficient 
to  sustain  a  verdict  of  murder  in  the  first  degree  under 
the  statutes:   Leschi  v.  Territory,  1  W.  T.  13. 

The  peculiar  circumstances  distinguishing  murder  in  the 
first  degree  under  the  statute  need  not  be  set  out  in 
the  indictment:  Id. 

The  jury  are  to  determine  from  the  evidence  the  degree: 
Id. 

Verdict  of  "  guilty  as  charged,  and  that  he  suffer  death," 
is  sufficient  verdict  for  murder  in  the  first  degree:   Id. 

Arraignment  cannot  be  waived  on  a  charge  of  murder: 
Elick  V.  Territory.  1  W.  T.  136. 

Consent  of  counsel  to  enter  plea  of  "not  guilty"  will  not 
dispense  with  arraignment,  and  prisoner  must  person- 
ally enter  his  plea,  unless  shown  to  be  incapacitated: 
Id. 

One  unacquainted  with  English  language  is  entitled 
to  have  interpreter,  who  shall  make  known  the  charge, 
j!£ceive  his  plea,  and  as  trial  proceeds,  interpret  the  evi- 
dence to  him:  Id. 

Homicide  on  Indian  reservation  is  within  federal  jurisdic- 
tion, and  the  contmon  law  governs:  Shapoonmash  v. 
United  States,  1  W.  T.  188. 

In  capital  cases,  no  presumption  in  favor  of  the  regularity 
-  of  the  proceedings:  Id. 

Murder  committed  on  tide-water,  within  the  boundaries  of 
a  county,  is  within  the  admiralty  jurisdiction  of  the 
United  States:  Smith  v.  United  States,  1  W.  T.  262. 
Territorial  courts  would  have  concurrent  jurisdiction  of 
such  offense:  Id. 


312  Homicide. 

Hcrnicide  (continued). 

Evidence  of  dangerous  character  of  the  deceased  not  ad- 
missible where  there  is  no  evidence  of  assault  or  threat- 
ened assault  on  his  part:  Id. 

Judge  withheld  instructions  on  manslaughter,  telling  the 
jury  that  if,  having  deliberated,  they  wanted  instruc- 
tions on  that  subject,  he  would  give  them;  held,  no 
error:   Id. 

There  being  no  evidence  to  reduce  the  crime  to  man- 
slaughter, it  is  not  error  to  refuse  to  instruct  on  that 
subject:   Id. 

Whether  the  deceased  was  or  was  not  an  American  citi- 
zen, or  whether  or  not  the  vessel  was  American,  is  im- 
material upon  the  question  of  the  jurisdiction  of  the 
United  States  admiralty  courts:  Id., 

Jurisdiction  of  territorial  courts  over  person  of  one  ac- 
cused of  murder  on  San  Juan  Island  during  the  joint 
occupancy  under  convention  between  the  United  States 
and  Great  Britain:  Watts  v.  United  States,  1  W.  T. 
288;  Watts  v.  Territory,  1  W.  T.  409. 

Not  error  to  instruct  that  where  a  third  person  interferes 
between  two  coml^atants,  without  reasonable  notice,  to 
prevent  one  of  the  latter  from  killing  the  other,  and  is 
killed,  such  killing  is  not  murder  in  the  first  degree: 
McAllister  v.  Territory,  1  W.  T.  360. 

Not  error  to  instruct  in  such  case  that  the  crime  is  no 
more  than  manslaughter:  Id. 

Omission  of  the  word  "  feloniously  "  is  not  material  if  the 
indictment  follows  the  statute:  Watts  v.  Territory,  1 
W.  T.  409. 

Inr>tructions  as  to  appearances  of  danger  that  justify  the 
taking  of  life  approved :  Id. 

Not  necessary  that  the  records  show  a  copy  of  indict- 
ment was  served  on  the  prisoner:  Lytic  v.  Territory,  1 
W.  T.  435;  Leonard  v.  Territory,  2  W.  T.  38L 

Not  necessary  where  there  is  no  evidence  of  self-defense, 
to  qualify  instructions  so  as  to  meet  case  of  accident  or 
self-defense:  Doctor  Jack  v.  Territory,  2  W.  T.  101. 

Deliberate  and  premeditated  malice  must  be  charged 
directly  of  the  killing,  and  applying  the  words  to  the 
assault  and  the  shooting  is  not  sufficient  in  the  indict- 
ment: Leonard  v.  Territory,  2  W.  T.  381. 


Husband  and  Wife.  313 

Homicide  (continued). 

Recital  in  the  conclusion  of  the  indictment  of  such  words 
as  applied  to  the  killing,  do  not  supply  the  omission 
to  directly  so  charge:  Id. 

Defendant,  against  whom  the  evidence  is  circumstantial, 
may  show  that  at  the  time  of  the  killing  another  person 
hostile  to  the  deceased  was  in  the  neighborhood,  and 
had  threatened  to  kill  deceased:  Id. 

InBtructions  as  to  duty  of  accused  to  disprove  facts  brought 
out  against  him,  and  inference  to  be  drawn  from  his 
failure  to  do  so  if  jury  believe  it  Avas  within  his  power 
to  disprove  them,  held  erroneous:  Id. 

Form  of  indictment  for  murder  in  first  degree  given:  Id. 
Horse  Races.     See  Wagers. 
Householders. 

Signer  of  petition  for  highway  is  not  a  "  disinterested  " 
householder,  and  is  incompetent  to  act  as  a  viewer: 
Thon.pson  v.  Multnomah  Co.,  2  Or.  34. 

Petition  of  twelve  householders  and  notice  are  jurisdic- 
tional in  proceedings  in  the  County  Court  to  lay  out  a 
highway:  Id.;  Johns  v.  Marion  Co.,  4  Or.  46. 

Unmarried  man  may  be  householder  under  the  road  law: 
Karaer  v.  Clatsop  Co.,  6  Or.  238. 

In  Washington  Territory,  husband  and  wife  jointly  con- 
stitute the  head  of  the  family,  and  wife,  as  well  as  hus- 
band, is  householder:  Rosencrantz  v.  Territory,  2  W.  T. 
207. 
Hurdy-gurdy  Houses. 

House  kept  for  public  dancing  simply  is  not  a  "  hurdy- 
gurdy  dance-house,"  within  the  statute:  State  v.  Tilley, 
9  Or.  125. 
Husband  and  Wife.  See  Curtesy;  Deeds;  Divorce;  Dower; 
'Estoppel;  Fraud  and  Deceit;  Fraudulent  Conveyances; 
Marriage;  Public  Lands. 

1.  Relation  and  Status. 

2.  Actions  and  Suits. 
2.    Property  Rights. 

1.    Relation  and  Status. 

Though  receiving  a  part  of  the  money  from  a  foreclosure 
sale  of  her  separate  property,  upon  the  husband's  mort- 
gage thereon,  in  suit  against  the  husband,  the  wife  is 
deemed  his  agent  merely,  and  is  not  estopped:  Fahie 
v.  Pressey,  2  Or.  23. 


314  Husband  and  Wife. 

Husband  and  Wife  (continued). 

Cannot  contract  with  each  other,  notwithstanding  article 
15,  section  5,  of  the  constitution:  Pittman  v.  Pittman, 
4  Or.  298;  Elfelt  v.  Hinch,  5  Or.  255. 

Voluntary  conveyance  by  husband  to  wife  presumed 
fraudulent  as  to  existing  creditors:  Id. 

On  marriage,  debts  owing  the  husband  by  the  wife  are 
canceled,  and  he  becomes  liable  for  such  other  debts 
of  hers  as  are  pressed  upon  him  during  coverture,  but 
not  for  those  not  so  pressed,  though  he  received  a  for- 
tune by  his  wife:  Gilmore  v.  Gilmore,  7  Or.  374. 

Married  woman's  note  is  not  absolutely  void,  but  the 
burden  is  on  the  party  setting  it  up  to  show  that  it  was 
made  within  her  powers  to  contract:  Wells  v.  Apple- 
gate,  10  Or.  519. 

In  1864,  in  Oregon,  husband  and  wife  could  not  contract 
with  each  other,  except  with  reference  to  wife's  separate 
property:  Lawrence  v.  Lawrence,  14  Or.  77. 

Wife  conducting  business  in  her  own  name  may  employ 
husband,  and  such  employment  is  not  a  fraud  on  hus- 
band's creditors,  and  does  not  subject  her  property  to 
his  debts:  King  v.  Voos,  14  Or.  91. 

So,  though  husband's  services  be  voluntary:  Id. 

But  such  arrangement  is  to  be  regarded  with  suspicion: 
Id. 

Rights  and  status  of  married  women  at  common  law 
reviewed:  Phelps  v.  Steamship  City  of  Panama,  1  W. 
T.  518. 

Woman's  right  to  contract  for  safe  carriage  of  her  person 
by  common  carrier  is  the  same  whether  she  be  married 
or  single:  Id. 

Married  women,  residing  with  their  husbands,  are  compe- 
tent grand  jurors  in  Washington  Territory:  Rosen- 
crantz  v.  Territory,  2  W.  T.  267;  Schilling  v.  Territory, 
2  W.  T.  283;  Hayes  v.  Territory,  2  W.  T.  286. 

Chapter  183  of  Code  1881  removed  common-law  disabil- 
ities of  wife:  Id. 

Under  the  statute,  husband  and  wife  are  jointly  the  head 
of  the  family,  and  wife  is  householder  as  well  as  the 
husband:  Id. 

Constitution  of  grand  jury  is  not  impaired  by  making 
married  women  members  thereof:  Id. 


Husband  and  Wife.  315 

Husband  and  Wife  (continued). 

2.  Actions  and  Suits. 

Title  being  in  the  wife,  she  is  a  necessary  party  to  fore- 
closure suit:   Fahie  v.  Pressey,  2  Or.  23. 

When  wife  is  sued  alone,  how  far  coverture  is  to  be 
pleaded  in  bar  or  abatement:  Kennard  v.  Sax,  3  Or. 
2G3. 

Specific  performance  of  contract  made  by  husband  and 
wife  to  convey  wife's  land  not  granted  during  coverture: 
Frarey  v.  Wheeler,  4  Or.  190. 

But  where  party  went  into  possession  and  improved,  value 
of  improvements  are  made  a  charge  on  land:  Id. 

Divorced  wife  cannot  sue  at  law  against  former  husband 
on  contract  implied,  arising  during  coverture:  Pittman 
V.  Pittman,  4  Or.  298. 

Husband  and  wife  must  be  joined  as  defendants  in  suit 
concerning  her  property:  Ilass  v.  Scdlak,  9  Or.  462. 

Wife  is  liable  for  goods  furnished  for  family  use,  under 
act  of  1878,  though  sold  on  husband's  credit:  Watkins 
v.  Mason,  11  Or.  72;  Phipps  v.  Kelly,  12  Or.  213. 

But  complaint  must  allege  that  the  goods  were  sold  for 
family  use,  and  the  wife  cannot  be  held  liable  in  a 
simple  action  for  goods  sold  and  delivered,  when  they 
were  sold  on  the  order  of  the  husband:  Smith  v.  Sher- 
win,  11  Or.  269. 

Wife  may  be  sued,  jointly  or  separately,  for  goods  sold  for 
family  use,  and  separate  judgment  rendered  against 
her:  Watkins  v.  Mason,  11  Or.  72;  Phipps  v.  Kelly,  12 
Or.  213. 

Equity  jurisdiction  over  wife's  separate  property  is  not 
ousted  by  the  act  of  1878  (sec.  2874,  Hill's  A.  L.),  pro- 
viding for  holding  her  personally  liable  in  an  action  at 
law  for  family  expenses:  Phipps  v.  Kelly,  12  Or.  213. 

Right  of  husband  to  join  with  wife  in  libel  in  admiralty 
in  rem,  for  injuries  to  her  person  received  on  ship: 
Phelps  V.  Steamship  City  of  Panama,  1  W.  T.  518. 

Wife  attempting  to  foreclose  a  fraudulent  mortgage  on 
husband's  property  may  be  enjoined  at  suit  of  attaching 
creditor:  Meacham  Arms  Co.  v.  Swarts,  2  W.  T.  412. 

3.  Property  Rights. 

Married  woman  is  estopped  by  the  recitals  in  her  deed: 
Graham  v.  Meek,  1  Or.  325. 


316  Husband  and  Wife. 

Husband  and  Wife  (continued). 

Title  being  in  wife,  she  is  necessary  part}'  to  foreclosure 

suit:  Fahie  v.  Pressey,  2  Or.  23. 
Not  estopped  to  claim,  though  silent  during  foreclosure  of 

husband's  mortgage  thereon:  Id. 
Is  not  estopped  by  husband's  deed  to  claim  after-acquired 

title  in  her:  Carter  v.  Chapman,  2  Or.  93. 
May  sell  or  exchange  separate  property,  and  the  money 

or  property  received  is  separate  property:  Brummet  v. 

Weaver,  2  Or.  168. 
Registration  of  separate  property  is  not  notice  to  stranger 

of  any  property  not  mentioned:  Id. 
Property  cannot  be  sold  or  exchanged,  and  consideration 

held  under  former  registration:  Id. 
Death  of  husband,  or  a  divorce,  operates  as  a  revocation 

of  registration:  Id. 
The  constitution  article  15,  section  5,  changes  the  common 

law  as  to  wife's  separate  property:  Id. 
To  charge  separate  estate  for  contract  during  coverture, 

debt  must  have  been  contracted  for  benefit  of,  or  on  the 

credit  of,  separate  estate:  Kennard  v.  Sax,  3  Or.  263. 
When  separate  estate  is  not  registered  as  such,  it  is  prima 

facie  the  property  of  husband :  Elfelt  v.  Hinch,  5  Or.  255. 
Rights  of  husband  and  wife  under  donation  law.     See 

Public  Lands. 
Property  bought  by  husband  with  wife's  money  in  his  own 

name  is  held  by  him  in  trust  for  her:  Linnville  v.  Smith, 

6  Or.  202. 
Section  5,  article  15,  of  the  constitution,  exempts  from  ex- 
ecution for  husband's  debts,  lands  of  woman  married 

before  adoption  of  the   constitution:    Rugh    v.    Otten- 

heimer,  6  Or.  231. 
Mortgage  of  woman's  separate  property  for  husband's  debts 

may  be  enforced:  Moore  v.  Fuller,  6  Or.  272;  Gray  v. 

Holland,  9  Or.  512. 
To  avoid  such  mortgage  on  the  ground  of  fraud,  she  must 

show  that  the  mortgagee  participated:  Id. 
Wife  is  entitled  to  own,  hold,  and  control  property  earned 

by  her  after  marriage,  and  husband  cannot  interfere 

with  it:  Atterberry  v.  Atterberry,  8  Or.  224. 
Wife  residing  out  of  the  state  may,  by  joining  with  her 

husband,  execute  a  valid  power  of  attorney  to  convey 


Husband  axd  Wipe.  317 

Husband  and  Wife  (continued). 

her  property  in  the  state:   Moreland  v.  Brady,  8  Or. 
303. 

Quitclaim  by  wife  of  dower,  in  husband's  deed,  does  not 
estop  her  from  claiming  an  existing  or  after-acquired 
fee-simple  interest:  Burston  v.  Jackson,  9  Or.  275. 

Husband's  interest  in  wife's  separate  property  does  not  ac- 
crue until  her  death,  and  it  is  no  fraud  on  his  creditors 
to  join  her  in  her  deed  of  conveyance  on  sale  by  her: 
Besser  v.  Joyce,  9  Or.  310. 

Husband  must  be  joined  as  defendant  in  suit  to  foreclose 
wife's  mortgage:  Hass  v.  Sedlak,  9  Or.  463. 

Wife,  mortgaging  her  property  for  husband's  debt,  holds 
as  surety  in  regard  thereto:  Gray  v.  Holland,  9  Or.  512. 

On  marriage,  at  common  law,  wife's  personalty,  actually 
or  constructively  in  her  possession,  becomes  the  prop- 
erty of  husband,  and  so,  also,  the  personalty  which  dur- 
ing coverture  is  reduced  to  his  or  her  possession:  Cressy 
V.  Tatom,  9  Or.  541. 

Land  purchased  in  Oregon,  in  name  of  husband,  with 
money  obtained  by  the  wife  during  coverture  while  they 
were  residing  in  another  state,  belongs  to  the  husband: 
Id. 

In  the  absence  of  averment  and  proof,  it  is  presumed  that 
the  common-law  rule  of  property  rights  prevails  in  other 
states:  Id. 

Equity  jurisdiction  over  wife's  separate  property  is  not 
ousted  by  the  act  of  1878  (sec.  2874,  Hill's  A.  L.),  pro- 
viding for  holding  her  personally  liable  in  an  action  at 
law  for  family  expense:  Phipps  v.  Kelly,  12  Or.  213. 

There  is  no  resulting  trust  proved  in  favor  of  the  wife, 
where,  under  an  oral  agreement  that  the  title  should  be 
_taken  in  the  wife's  name,  the  husband  paid  the  pur- 
chase-money and  for  the  improvements,  and  the  family 
resided  on  the  property:  Lawrence  v.  Lawrence,  14  Or. 
77. 

Where  husband  and  wife  sell  their  donation  claim,  and 

husband  invests  the  proceeds  of  both  his  and  the  wife's 

,  portion  in  other  land,  on  which  both  reside  for  twenty 

years,  husband  holds  an  undivided  half  in  trust  for 

wife:   Springer  v.  Young,  14  Or.  280. 

Neglect  of  wife  during  coverture  to  establish  her  right  by 
Buit  does  not  bar  her  claim :  Id. 


818  Impaneling  Jury. 

Impaneling  Jury.     See  Jury  and  Jury  Trial. 
Impeachment.     See  Judgments  and  Decrees;  Witnesses. 
Imprisonment.     See  Arrest;  Commitment;  Criminal  Law; 

False  Imprisonment;  Habeas  Corpus. 
Improvements.     See  Estoppel;    Mortgages;    Specific  Per- 
formance. 
Indian  Country.     See  Indians. 
Indians. 

Oregon  is  "  Indian  country  "  within  the  purview  of  acts 

of  Congress:   United  States  v.  Tom,  1  Or.  26. 
Prohibition  of  sale,  etc.,  of  liquor  to,  in  act  of  Congress 
of  June  30,  1834,  applicable  to  Oregon  and  Washing- 
ton Territory:  Id.;  Fowler  v.  United  States,  1  W.  T.  3. 
One  who  sells  liquor  to  Indians  may  be  punished  under 
territorial  act  and  act  of  Congress -for  the  same  offense: 
State  V.  Coleman,  1  Or.  191. 
Indian  agent  may,  under  act  of  Congress,  seize  wagon  and 
team  engaged  in  transporting  liquor  through  reserva- 
tion, though  the  person  in  possession  is  not  the  owner: 
Webb  V.  Nickerson,  11  Or.  382. 
Surrendering  the  property  to  the  owner  subsequently  is 

not  an  admission  that  the  seizure  was  wrongful:  Id. 
In  justifying  under  the  seizure,  it  is  necessary  to  allege 
that  the  person  in  possession  was  a  white  person  or  an 
Indian:  Id. 
Washington  Territory  is  Indian  country  within  the  mean- 
ing of  the  Indian  intercourse  act:   Nesqually  Mill  Co. 
V.  Taylor,  1  W.  T.  1. 
Act  of  Congress  of  March  3,  1847,  regarding  trade  with 
Indians,  does  not  repeal  the  act  of  June  30,  1834,  but 
the  second  section  adds  the  penalty  of  imprisonment: 
Id. 
A  fine  under  the  act  of  1834  can  only  be  collected  by 

suit:  Id. 
No  evidence  of  general  war  among  the  Indians,  affecting 

the  case:  Yelm  Jim  v.  Territory,  1  W.  T.  63. 
Indian  sustaining  tribal  relations  is  as  capable  of  enter- 
ing into  contract  as  any  other  alien,  excepting  execu- 
tory contracts  for  payment  of  money,  or  goods  paid  or 
furnished  by  the  United  States  to  any  Indian  tribe  pur- 
suant to  stipulation  or  treaty:  Gho  v.  Julles,  1  W.  T. 
325. 


Injunctions.  319 

Indians  (continued). 

The  right  of  Indian  to  contract  draws  after  it  liability  to 
be  sued:   Id. 
Indictment.     See  Criminal  Law. 

Individual  Liability  of  Stockholders.     See   Corpora- 
tions. 
Indorsement.     See  Bills  and  Notes;  Filing  Papers. 
Infants.     See  Divorce;    Guardian   and  Ward;    Parent   and 
Child;  Statute  of  Limitations. 

Decree  against  infant  by  court  having  jurisdiction,  with- 
out fraud,  is  as  binding  as  against  an  adult:  English 
V.  Savage,  5  Or.  518. 

Doctrine  of  parol  demurrer  is  not  recognized  in  Oregon: 
Id. 

In  action  for  assault  and  battery  upon  infant  in  the  care 
of  the  defendant,  his  general  conduct  toward  the  infant 
is  admissible  to  prove  or  rebut  evidence  of  malice: 
Smith  V.  Harris,  7  Or.  76. 

Putative  father  of  bastard  not  liable  on  his  naked  prom- 
ise to  support:  Nine  v.  Starr,  8  Or.  49. 

Mother  of  such  child  is  the  guardian,  and  is  bound  to 
maintain  it:  Id. 
Information.     See  Criminal  Law;  Quo  Warranto. 
Infringement.     See  Trade-mark. 
Injunctions. 

Individual  may  have  injunction  against  public  nuisance 
when  specially  and  irreparably  injured:  Parrish  v, 
Stephens,  1  Or.  73. 

Dissolution  acts  as  a  technical  breach  of  injunction  bond: 
Stone  V.  Cason,  1  Or.  100. 

The  power  to  grant  an  injunction  will  not  be  exercised 
where  there  is  remedy  at  law,  not  unless  plaintiff  has 
"shown  diligence:  Wells,  Fargo,  &  Co.  v.  Wall,  1  Or.  295. 

Discretionary,  in  enjoining  the  erection  of  party-wall  in 
this  case,  and  here  denied:  Burton  v.  MoflStt,  3  Or.  29. 

Where  answer  denies  all  equities  in  bill,  injunction  not 
granted:  Wellman  v.  Parker,  3  Or.  253. 

Not  the  proper  remedy  to  require  inferior  court  to  com- 
plete its  record:  State  v.  Church,  5  Or.  373. 

Not  the  proper  remedy  to  test  the  validity  of  election  de- 
termining location  of  county  seat:  McWhirter  v.  Brain- 
ard,  5  Or.  426. 


320  Injunctions. 

Injunctions  (continued). 

Not  granted  where  the  rights  of  the  plaintiff  are  doubtful: 
Taylor  v.  Welch,  6  Or.  198;  Ladd  and  Bush  v.  Ramsby, 
10  Or.  207;  Tongue  v.  Gaston,  10  Or.  328;  Wattier  v. 
Miller,  11  Or.  329. 

The  threatened  erection  of  wharves  on  the  water  front  ad- 
jacent to  plaintiff's  land  may  be  enjoined:  Parker  v. 
Taylor,  7  Or.  435. 

Not  granted  to  restrain  road  supervisor  from  taking  mate- 
rial for  repairing  roads  froiu  lands  near  by,  in  the  ordi- 
nary discharge  of  his  duties:  Kendall  v.  Post,  8  Or.  141. 

Complaint  must  not  only  allege  irreparable  injury,  but 
state  the  facts  from  which  ic  is  inferred:  Portland  v. 
Baker,  8  Or.  356. 

Adjacent  lot-owner  may  enjoin  person  threatening  to  grade 
down  street  and  permanently  injure  his  lot:  Price  v. 
Knott,  8  Or.  438. 

When  equity  will  enjoin  a  threatened  trespass:  Weiss  v. 
Jackson  Co.,  9  Or.  470;  Wattier  v.  Miller,  11  Or.  329; 
Smith  V.  Gardner,  12  Or.  221;  Walts  v.  Foster,  12  Or. 
247. 

In  the  absence  of  malice  and  want  of  probable  cause,  a 
person  injured  by  injunction  must  seek  his  remedy  on 
the  injunction  bond:  Ruble  v.  Coyote  G.  &  S.  M.  Co., 
10  Or.  39. 

Such  person  must  seek  his  remedy  at  law,  and  not  in 
equity,  in  any  event:  Id. 

Remedy  may  be  had  at  law  on  the  bond,  though  in  terms 
joint,  and  the  interest  of  the  parties  distinct:  Id. 

Right  of  garnishee  to  enjoin,  for  defects  in  proceedings 
against  the  defendant:  Ladd  and  Bush  v.  Ramsby,  10 
Or.  207. 

Injunction  not  granted  on  alternative  and  doubtful  aver- 
ments: Id. 

Injunction  against  overflow  by  dam  not  granted  where 
plaintiff's  right  is  doubtful:  Tongue  v.  Gaston,  10  Or. 
328. 

Does  not  lie  at  suit  of  road  supervisor  to  prevent  person 
from  illegally  collecting  and  appropriating  road  taxes: 
Pettyjohn  v.  Parmenter,  10  Or.  341. 

Granted  to  restrain  judgment  obtained  by  fraud  against 
defendant  having  a  good  defenfe:  Marsh  v.  Perrin,  10 
Or.  364. 


Injunctions.  321 

Injunctions  (continued). 

Granted  at  the  suit  of  a  riparian  owner  to  restrain  unlaw- 
ful diversion  of  waters  of  Tualatin  River:  Shaw  v. 
Oswego  Iron  Co.,  10  Or.  371;  Weiss  v.  Oregon  Iron  etc. 
Co.,  13  Or.  496. 

Merits  of  an  injunction  suit  in  Circuit  Court,  to  restrain 
enforcement  of  a  decision  of  Supreme  Court,  may  be 
inquired  of  by  the  latter  court  on  mandamus:  State  v. 
Jacobs,  11  Or.  314. 

The  issuing  of  the  writ  of  mandamus  is  a  conclusive  de- 
termination of  the  invalidity  of  the  injunction:  Id. 

Injunction  for  infringement  of  trade-mark,  when  allowed: 
Duniway  Pub.  Co.  v.  Northwest  Printing  Co.,  11  Or. 
322. 

Owner  of  dam  not  entitled  to  injunction  against  one  in 
possession  of  land  overflowed  thereby,  who  seeks  to 
drain  the  land,  without  showing  an  easement  in  him- 
self to  overflow  such  land:  Wattier  v.  Miller,  11  Or.  329. 

Injunction  may  be  granted  to  restrain  sale  on  execution  on 
a  judgment  when  the  result  would  cloud  the  title:  Cox 
V.  Smith  and  Forward,  10  Or.  4l8;  Wilhelm  v.  Wood- 
cock, 11  Or.  518. 

Lies  to  restrain  waste,  threatened  or  being  committed: 
Sheridan  v.  McMullen,  12  Or.  150. 

When  emergency  is  pressing,  on  prima  facie  case  shown, 
temporary  injunction  may  be  granted  pending  legal 
proceedings  to  determine  the  rights  of  the  parties: 
Walts  V.  Foster,  12  Or.  247. 

To  have  collection  of  a  tax,  part  of  which  is  illegal,  re- 
strained, the  part  that  is  legal  must  have  been  paid  or 
tendered:  Brown  v.  School  Dist.  No.  1,  12  Or.  345. 

Lies  to  restrain  a  resale  of  property  for  taxes  by  a  city 
after  power  has  been  exhausted  by  a  void  assessment 
aiTd  sale:  Dowell  v.  Portland,  13  Or.  248. 

Tax-payer  may  maintain  a  suit  to  enjoin  county  ofiicers 
from  expending  money  for  fraudulent  or  illegal  pur- 
poses: Carman  v.  Woodrufi",  10  Or.  133;  \VMte  v.  Com- 
missioners, 13  Or.  317. 

What  complaint  in  an  action  on  an  injunction  bond  must 
allege:  Olds  v.  Cary,  13  Or.  362. 

When  attorneys'  fees  in  an  injunction  suit  are  recoverable 
as  damages,  in  an  action  on  the  bond:  Id. 

Ob.  Dig.— 21 


822  Injunctions. 

Injunctions  (continued). 

Appeal  and  not  injunction  is  the  proper  remedy  to  pre- 
vent enforcing  an  erroneous  judgment  for  costs:  Nick- 
lin  V.  Hobin,  13  Or.  406. 

Riparian  owner  is  entitled  to  injunction  to  prevent  diver- 
sion of  a  stream,  although  he  is  injured  but  slightly, 
and  uses  but  little  of  the  water:  Weiss  v.  Or.  Iron  etc. 
Co.,  13  Or.  496. 

Legislature  cannot  divert  property  from  the  use  for  which 
dedicated  to  the  public;  and  any  person  interested  is 
entitled  to  enjoin  such  diversion:  P.  &  W.  V.  R.  R.  Co. 
V.  Portland,  14  Or.  188. 

Injunction  will  be  refused,  and  party  remanded  to  his 
action  at  law,  where  it  appears  that  the  trespass  com- 
mitted is  discontinued,  and  damages  is  the  object  of 
the  suit:  Ewing  v.  Rourke,  14  Or.  514. 
•  Courts  will  protect  possessory  rights  in  public  lands  be- 
fore patent,  by  injunction  against  irreparable  injury  by 
waste:  Colwell  v.'  Smith,  1  W.  T.  92. 

Appeal  does  not  lie  from  order  granting  or  refusing  tem- 
porary injunction:  N.  P.  R.  R.  Co.  v.  W.  F.  &  Co.,  2 
W.  T.  303. 

Attaching  creditor  is  entitled  to  injunction  to  restrain  wife 
from   foreclosing  fraudulent  chattel  mortgage  on  her 
husband's  chattels:   Meacham  Arms  Co.  v.  Swarts,  2 
W.  T.  412. 
Innkeepers. 

Lien  of,  for  unpaid  charges,  covers  property  of  guest,  or 
of  another  put  in  his  possession  by  the  guest:  Cook  v, 
Kane,  13  Or.  482. 

Such  lien  attaches  to  property  of  third  person  in  the  hands 
of  guest  as  bailee,  coming  to  the  innkeeper  by  virtue  of 
the  innkeeping  relation  without  notice  of  the  true  owner- 
ship: Id. 

Piano  of  third  person,  received  by  guest  in  his  own  name, 
and  by  his  request  put  in  possession  of  the  innkeeper 
as  the  property  of  the  guest,  is  covered  by  innkeepers' 
lien:  Id. 
Insanity.     See  Fraud  and  Deceit. 

Deed  of  insane  person  is  void,  and  may  be  impeached  when 
offered  to  prove  title  in  ejectment:  Farley  v.  Parker,  6 
Or.  105. 


Insolvency.  323 

Insanity  (continued). 

Opinion  of  intimate  acquaintance  admissible  on  the  ques- 
tion of  sanity,  though  he  does  not  state  in  express 
words  that  he  is  an  intimate  acquaintance:  Id. 
Not  presumed  where  the  testator's  mahidy  was  in  its  nature 
occasional  or  temporary,  that  he  was  insane  at  the  time 
of  making  his  will:  Heirs  of  Clark  v.  Ellis,  9  Or.  128. 
Delirium  in  an  aged,  infirm    person  distinguished  from 

insanity:  Id. 
Insanity  as  a  defense  to  crime:  State  v.  Murray,  11  Or. 

413;  McAllister  v.  Territory,  1  W.  T.  360. 
If  it  appear  that  the  accused  could  distinguish  between 
right  and  wrong  as  to  the  particular  act,  that  he  knew 
it  was  wrong  and  would  subject  him  to  punishment,  the 
defense  will  fail:  Id. 
Must  be  proved  beyond  a  reasonable  doubt  in  Oregon,  as 
a  defense,  that  at  the  time  the  accused  labored  under 
diseased  state  of  mind  so  excessive  as  to  overwhelm 
reason,  conscience,  and  judgment:  Id. 
As    a  matter  of  independent  defense,  insanity  must  be 
proved  to  the  satisfaction  of  the  jury,  unless  the  facts 
on  which  it  is  based  are  part  of  the  res  gestx:  McAllister 
V.  Territory,  1  W.  T.  360. 
A  mere  blow  inflicted  on  the  defendant,  nothing  appear^ 
ing  to  show  its  severity  or  other  physical  consequence,  is 
not  evidence  from  which  insanity  may  be  inferred:  Id. 
Insolvency.     See  Assignment  for  Benefit  of  Creditors. 

Where  corporation  is  shown  to  be  insolvent,  a  judgment 

against  it  and  return  of  nulla  bona  are  not  necessary 

before  suit  against  stockholders:  Hodges  and  Wilson 

V.  Silver  Hill  Mining  Co.,  9  Or.  200. 

Return  of  nulla  bona  is  but  one  kind  of  proof  of  insolvency, 

ami  it  may  be  proved  otherwise:  Id. 
Discharge  in  bankruptcy,  of  one  who  has  previously  con- 
cealed a  part  of  his  property,  does  not  preclude  creditor, 
not   a   party,  from   pursuing  the  property:    Besser   v 
Joyce,  9  Or.  310. 
Resident  creditor  cannot  collaterally  attack  discharge  of 
debtor,  under  Territorial  Insolvent  Act",  for  fraud,  es- 
pecially when  it  is  not  shown  that  he  has  no  knowledge 
of  the  fraud  at  the  time  of  the  discharge:  Rosenthal  v 
Schneider,  2  W.  T.  144. 


824  Instructions  to  Jury. 

Instructions  to  Jury.     See  Criminal  Law;  Jury  and  Jury 

Trial. 
Insurance. 

Warranty  in  insurance  defined;  representations  distin- 
guished: Buford  V.  N.  Y.  Life  Ins.  Co.,  5  Or.  334. 

Warranties  must  be  pleaded,  and  are  conditions  precedent 
by  the  assured,  and  the  burden  is  on  him  to  prove:  Id. 

Representations,  if  false,  are  to  be  pleaded  and  proved  by 
the  insurer:  Id. 

The  court  construes  the  contract,  whether  of  warranty  or 
representation,  and  should  not  leave  the  question  to  the 
jury:  Id. 

The  truth  or  falsity  of  the  answers  of  assured  in  the  appli- 
cation, and  not  whether  such  answers  were  material 
and  warranties,  the  question  for  the  jury:  Id. 

What  is  "doing  insurance  business"  under  statute  of 
Washington  Territory,  by  agent  of  foreign  corporation: 
Hacheny  and  Beno  v.  Leary,  12  Or.  40. 

Taking  of  note  by  a  resident  agent  in  Washington  Terri- 
tory, for  an  installment  of  premiums  due  a  foreign  com- 
pany which  has  not  complied  with  the  statute,  is  doing 
insurance  business  in  Washington  Territory:  Id. 

Such  note  is  void  and  cannot  be  enforced:  Id. 
Interest. 

May  be  allowed  on  the  amount  of  a  meclianic's  lien: 
Willamette  Falls  etc.  Co.  v.  Riley,  1  Or.  183. 

Not  allowed  on  mutual  accounts  until  balanced  and  set- 
tlement is  had:  Catlin  v.  Knott,  2  Or.  321. 

Where  new  law  alters  rate,  interest  recoverable  under  old 
law  to  date  of  new,  then  under  new  law:  Stark  v.  Olney, 
3  Or.  88. 

Note  calling  for  three  per  cent  per  month,  valid  when 
made,  enforced  according  to  its  terms:  Besser  v.  Haw- 
thorne, 3  Or.  129. 

Compounding  interest  under  act  of  1854:  Murray  v.  Oli- 
ver, 3  Or.  539. 

Interest  not  allowed  to  executor  or  his  heirs  on  setting 
aside  a  conveyance  of  land  belonging  to  the  estate  and 
bought  in  by  the  executor  through  an  agent:  Lay  ton  v. , 
Ilogue,  5  Or.  93. 

It  is  error  to  allow  interest  in  excess  of  the  legal  rate  in  a 
judgment:  Breemer  &  Co.  v.  Fleckenstein  and  Mayer, 


Interpleadee.  325 

Interest  (continued). 

9  Or.  266;  Roeder,  Peabody,  &  Co.  v.  Brown,  1  \V.  T. 
112. 

Note  given  for  payment  of  interest  upon  interest  already 
due  is  valid:  Hathaway  v.  Sewall,  11  Or.  66. 

State  is  not  entitled  to  interest  upon  recovery  from  a 
county  of  a  balance  of  unpaid  taxes:  State  v.  Multno- 
mah County,  13  Or.  287. 

Residuary  legatee  not  chargeable  with,  after  final  settle- 
ment, on  note  previously  given  the  executor  for  funds 
belonging  to  the  estate:  Leahy  v.  Cardwell,  14  Or.  171. 

Judgment  on  a  note  cannot  bear  greater  interest  than  six 
per  cent  per  annum,  though  the  note  provided  for  three 
per  cent  per  month:  Roeder,  Peabody,  &  Co.  v.  Brown, 
1  W.  T.  112. 

One  seeking  to  recover  a  larger  than  the  legal  rate  must 
make  certain  that  his  contract  in  that  respect  is  clear 
and  unmistakable:  Hazard  v.  Maxon,  1  W.  T.  584. 

Court  being  unable  to  interpret  an  ambiguous  provision 
in  contract  for  greater  than  legal  rate,  rejected  the  in- 
terest clause  as  repugnant:  Id. 

Not  allowed  on  open  account,  unless  stipulated  for:  Bax- 
ter v.  Waite,  2  W.  T.  228. 

When  it  is  admitted  in  the  pleadings  that  plaintiff  is  en- 
titled to  recover  on  part  of  an  open  demand  sued  on,  he 
is  entitled  to  interest  on  such  amount  from  the  com- 
mencement of  the  action:  Breemer  v.  Burgess  2  W.  T. 
290. 

Payment  and  acceptance  of  interest  on  a  promissory  note 
relieves  it  from  statute  of  limitations:    Koslowski  v. 
Yesler,  2  W.  T.  407. 
Interpleader. 

Aaeignee  need  not  intervene  in  an  attachment  against  the 
property  assigned  to  him  for  the  benefit  of  creditors,  to 
move  for  its  dissolution,  as  it  is  ipse  facto  dissolved  by 
the  assignment:  Tichenfir  v.  Coggins,  8  Or.  270. 

The  right  to  interplead  or  to  intervene  under  the  Code 
discussed:   Id. 

Defendant  in  an  action  by  husband  and  wife  on  note  due 
the  wife,  being  garnished  by  husband's  creditors  claim- 
ing the  note  to  be  his,  may  file  bill  of  interpleader: 
Fahie  v.  Lindsay,  8  Or.  474. 


326  Interpleader. 

Interpleader  (continued). 

Evidence  to  prove  collusion  of  plaintifiF  and  some  of  the 
defendants  is  not  admissible  after  the  order  allowing 
interpleader  has  been  made:  Id. 

No  order  of  interpleader  necessary  to  enable  defendant,  in 
mortgage   foreclosure  suit,  to  file  answer  to  the  new 
matter  in  answer  of  co-defendants  claiming  adversely: 
Ladd  and  Tilton  v.  Mason,  10  Or.  308. 
Interpreter. 

Witness  may  translate  document  written  in  a  foreign  lan- 
guage, though  not  sworn  as  interpreter:  Krewson  &  Co. 
V.  Purdom,  13  Or.  563. 

In  the  trial  of  one  unacquainted  with  the  English  lan- 
guage, a  sworn  interpreter  should  make  known  the 
charge,  and  the  plea  be  entered  by  the  same  means,  and 
the  evidence  during  the  trial  be  made  known  to  the  de- 
fendant: Elick  V.  Territory,  1  W.  T.  136. 
Intervention.  See  Interpleader. 
Jailer. 

Sheriff  may  appoint,  and  is  responsible  for  jailer's  acts,  but 
the  county  is  not  liable  for  his  compensation:  Crossen 
V.  Wasco  County,  6  Or.  215. 
Jeopardy. 

Sale  of  liquor  to  Indians  may  be  punished  for  the  same 
offense  by  territorial  law,  and  also  act  of  Congress:  Ore- 
gon V.  Coleman,  1  Or.  191. 

Conviction  of  disturbing  the  peace  before  city  recorder,  no 
bar  to  prosecution  for  assault  and  battery  in  Circuit 
Court:  State  v.  Sly,  4  Or.  277. 

Conviction  of  taking  saddle  and  bridle,  bar  to  charge  of 
taking  a  horse  at  same  time  and  place,  the  property  of 
the  same  person:  State  v.  McCormack,  8  Or.  236. 

Test  is  not  whether  defendant  has  been  tried  for  same  act, 
but  same  offense:  State  v.  Stewart,  11  Or.  52;  S.  C,  11 
Or.  238. 

Conviction  of  assault  and  battery  no  bar  to  prosecution  for 
kidnaping:  Id. 
Joinder  of  Actions.     See  Pleading. 
Joinder  of  Parties.     See  Parties;  Joint  and  Several  Liar- 

bility. 
Joint  and  Several  Liability. 

Consideration,  good  as  to  one  joint  obligor,  is  good  as  to 
the  others,  ajid  cannot  be  severed:  Iloxie  v.  Ilodgcs,  1 
Or.  251. 


Joint  and  Several  Liability.  327 

Joint  and  Several  Liability  (continued). 

Effect  in  this  state  of  judgment  of  another  state  against 
joint  debtors,  upon  the  party  appearing  in  the  action 
wherein  tlie  judgment  was  rendered:  Swift  v.  Stark,  2 
Or.  97. 

Such  judgment  is  prima  facie  evidence  of  the  indebtedness 
of  the  joint  debtors  not  served  or  appearing:  Id. 

Payment  by  one  joint  debtor  of  part  of  debt  revives  the 
liability  of  all  the  debtors:  Partlow  v.  Singer,  2  Or.  307. 

Persons  jointly  liable  on  a  note  by  its  terms  must  be  sued 
jointly,  though  the  fact  be  that  they  are  jointly  and 
severally  liable:  Kamm  v.  Harker,  3  Or.  208. 

Liability  of  one  joint  maker  where  the  other  alters  note 
after  same  is  signed:  Wills  v.  Wilson,  3  Or.  308. 

Entry  of  judgment  against  one  defendant  served,  proper 
where  obligation  is  joint  and  several:  Simpson  v.  Pra- 
ther,  5  Or.  86. 

Release  of  one  joint  debtor  on  a  joint  and  several  promis- 
sory note  releases  the  co-debtors:  Crawford  v.  Roberts, 
8  Or.  324. 

On  joint  and  several  contract,  under  the  Code,  judgment 
may  be  rendered  against  some,  leaving  the  action  to 
proceed  against  the  others:  Sears  v.  McGrew,  10  Or.  48. 

A  covenant  with  persons  jointly  and  severally  liable  on  a 
bond,  to  indemnify  them,  will  follow  the  bond,  and  be 
held  joint  and  several  also:  Hughes  v.  Oregon  R'y  and 
Nav.  Co.,  11  Or.  437. 

Sheriff  and  attaching  creditors  are  not  liable  jointly  for 
co:iversion  in  taking  money  from  person  of  prisoner  and 
levying  thereon  under  several  attachments:  Dahms  v. 
Sears,  13  Or.  47. 

In  action  on  an  alleged  joint  contract,  where  the  proof 
Tails  as  to  some  of  the  defendants,  judgmtat  may  be 
taken  against  one  defendant  proved  liable,  and  dis- 
missed as  to  the  others:  Ah  Lep  v.  Gong  Choy,  13  Or. 
205;  Fisk  v.  Henarie,  14  Or.  29. 

But  this  does  not  authorize  a  recovery  against  part  of  the 
defendants  in  such  case,  where  the  others  are  also  liable: 
Id. 

When  tenants  in  common  unite  in  contracting  with  a 
broker  to  sell  their  land,  they  are  properly  joined  as  de- 
fendants in  an  action  for  breach:  Id. 


328  Joint  and  Several  Liability. 

Joint  and  Several  Liability  (continued). 

The  contract,  and  not  the  fact  of  their  co-tenancy,  deter- 
mines their  joint  or  several  liability:  Id. 

In  a  suit  for  an  accounting  between  partners,  they  are 
usually  severally  liable,  and  not  jointly:  Bloomfield  v. 
Buchanan,  14  Or.  181. 

But  where  there  is  a  concerted  action  by  some  of  the 
partners  to  exclude  another  from  the  profits,  they  are 
jointly  and  severally  liable:  Id. 

Where  in  an  answer  in  replevin  defendants  admit  a  joint 
taking  and  detention,  they  are  not  entitled  to  an  in- 
struction that  no  case  has  been  established  as  to  one  of 
them:  Moorhouse  v.  Donaca,  14  Or.  430. 

Principal  and  guarantor  are  severally,  and  not  jointly, 
liahle  on  a  contract  of  guaranty,  and  should  not  be 
joined  as  defendants:  Tyler  v.  T.  of  T.  A.  &  P.  U.,  14 
Or.  485. 

Where  an  action  is  brought  against  two  persons  on  a  joint 
liability,  a  verdict  cannot  be  sustained  unless  joint 
liability  is  proven:  Gove  v.  Moses,  1  W.  T.  7. 
Judges.     See  Police  Judge. 

Certificate  authenticating  record  from  any  state  must 
show  judge's  ofiicial  character:  Pratt  v.  King,  1  Or.  49. 

But  where  it  does  not  appear  that  there  are  other  judges, 
he  is  presumed  the  only  judge:  Keyes  v.  Mooney,  13 
Or.  179. 

May  appoint  special  term,  under  statute:  OTCelly  v.  Ter- 
ritory, 1  Or.  51. 

At  chambers,  have  all  powers  of  court,  in  election  con- 
test: Myers  v.  Warner,  3  Or.  212. 

A  county  judge,  elected,  holds  ofiice  for  four  years  except 
in  case  of  death  or  resignation:  State  v.  Johns,  3  Or. 
533. 

Indictment  against  a  judge  for  feloniously  receiving  ille- 
gal compensation:  State  v.  Perham,  4  Or.  188. 

Money  illegally  received  by  a  judge  under  a  claim  for 
salary  may  be  recovered  by  county:  Grant  County  v. 
Sels,  5  Or.  243. 

Objection  that  judge  is  not  authorized  to  sit  in  a  criminal 
case  cannot  be  taken  for  the  first  time  in  the  Supreme 
Court:  State  v.  Whitney,  7  Or.  386. 


Judgments  and  Decrees.  329 

Judges  (continued). 

Right  to  the  office  cannot  be  tried  collateralljr  in  a^rim- 
inal  case:  Id. 

Act  of  1878  (sec.  2287,  Hill's  A.  L.),  providing  for  election 
of  judges  of  Supreme  and  Circuit  Courts  in  distinct 
classes  is  not  unconstitutional  as  giving  governor  power 
to  appoint  in  the  interim:  Cline  and  Newsome  v.  Green- 
wood and  Smith,  10  Or.  230. 

The  office  came  into  existence  a±  its  creation,  and  ipse 
facto  became  vacant:  Id. 

Act  giving  judge  power  to  try  election  contest  in  vacation 
is  not  unconstitutional:  Cresap  v.  Gray,  10  Or.  345. 

Judge  may  be  compelled  by  mandamus  to  sign  bill  of  ex- 
ceptions: Ah  Lep  V.  Gong  Choy,  13  Or.  205. 

Term  of  circuit  judge  is  six  years;  but  where  vacancy-oc- 
curs during  the  term,  the  person  elected  holds  not  for 
six  years,  but  for  remainder  of  unexpired  term :  State 
V.  Ware,  13  Or.  380. 

Judge  at  chambers  cannot  make  an  order  dissolving  an 
attachment:  Suffern  v.  Chisholm,  1  W.  T.  486. 

Cannot  in  vacation  supply,  by  nunc  pro  tunc  &rder,  an 
omission  from  records  of  previous  term:  Hale  v.  Finch, 
1  W.  T.  517. 

Powers  in  vacation  are  governed  and  limited  by  statute, 
and  it  must  appear  on  the  face  of  the  record  that  the 
judge  acted  within  the  statute:  Id. 
Judgments  and  Decrees.  See  Appeal  and  Error;  Costs 
and  Disbursements;  Jurisdiction;  Justice  of  the  Peace; 
Res  Judicata. 

1.  Rendering  and  Entry. 

2.  By  Confession. 

3.  By  Default. 

4r~EFFECT    AND    BaR. 

5.  Lien. 

6.  Revr'al. 

7.  Satisfaction. 

8.  Setting  Aside  and  Vacation. 

9.  Correction. 

10.  Impeachment. 

11.  Action  on  and  Defense. 
L   Rendering  and  Entry. 

The  court  has  no  authority  to  enter  judgment  on  award 
made  after  referee's  authority  has  expired:  Ilamicr, 
Jennings,  &  Co.  v.  Coffin,  1  Or.  99. 


330  Judgments  and  Decrees. 

Judgments  and  Decrees  (continued). 

May  be  entered  against  appellant  and  surety  on  affirm- 
ance of  appeal  from  County  Court:  Charman  and  War- 
ner V.  McLane,  1  Or.  339. 

For  costs  and  disbursements  in  preliminary  examination 
against  prosecuting  witness  is  void:  McDonald  v.  Cru- 
zen,  2  Or.  259. 

In  foreclosure  suit  between  several  mortgage  lien-holders: 
C havener  v.  Wood,  2  Or.  182. 

When  judgment  on  the  pleadings  will  be  rendered :  Heath- 
erly  v.  Hadley,  2  Or.  2G9;  Simpson  v.  Prather,  5  Or.  86; 
Bowles  v.  Doble,  11  Or.  474. 

Of  default  by  county  clerk  without  judicial  direction: 
Graydon  v.  Thomas,  3  Or.  250;  Crawford  v.  Beard,  12 
Or.  447. 

Judgment  entered  should  show  unequivocally  what  mat- 
ters were  adjudicated:  Dray  v.  Crich,  3  Or.  298. 

Entry  against  one  defendant  served,  proper  where  action 
is  joint  and  several:  Simpson  v.  Prather,  5  Or.  86. 

Duty  of  court  in  divorce  cases  to  award  one  third  of  real 
property  under  statute  is  peremptory:  Wetmore  v.  Wet- 
more,  5  Or.  469. 

Having  rendered  judgment  but  failed  to  record  same  at 
length,  a  justice  may  subsequently  record  the  judgment 
in  his  docket:  Knapp  v.  King,  6  Or.  243. 

In  the  absence  of  fraud,  a  judgment  by  a  justice  entered 
as  of  the  6th,  when  rendered  on  the  11th  of  April,  by  a 
justice,  is  not  void:  Saunders  v.  Pike,  6  Or.  312. 

Justice  may  take  case  under  advisement,  and  without  ad- 
journing to  a  day  certain,  afterward  render  judgment: 
Id. 

Court  has  jurisdiction  to  hear  the  testimony  in  vacation 
by  consent,  and  render  judgment  at  subsequent  term: 
Roy  V.  Horslcy,  6  Or.  382. 

A  stipulation  for  a  decree  affecting  property  rights  of  all 
parties  to  a  suit,  but  not  entered  into  by  all,  cannot  be 
enforced:  Adams  v.  Wilson,  6  Or.  391. 

Judgment  for  costs  in  criminal  case,  if  not  entered  within 
reasonable  time,  does  not  operate  as  a  lien  against  pur- 
chaser without  notice:  State  v.  Munds,  7  Or.  80. 

Judgment  must  be  rendered  against  all  the  defendants, 
in  conversion,  on  general  verdict:  Cauthorn  v.  King,  8 
Or.  138. 


Judgments  and  Decrees.  331 

Judgments  and  Decrees  (continued). 

In  action  on  joint  and  several  contract,  judgment  may 
be  rendered  against  some,  leaving  the  action  to  proceed 
as  to  other,  defendants:  Sears  v.  McGrew,  10  Or.  48. 

In  action  to  condemn  right  of  way,  judgment  for  the 
land,  absolutely,  cannot  be  rendered,  and  an  easement 
only  is  acquired:  0.  R.  &  N.  Co.  v.  Real  Estate  Co.,  10 
Or.  444. 

Judgment  on  the  pleadings,  except  in  the  absence  of  reply 
to  new  matter  in  the  answer,  held  bad  practice:  Bowles 
v.  Doble,  11  Or.  474. 

Judgment  rendered  upon  a  verdict  found  for  plaintiff, 
after  testimony  of  defense  was  excluded,  on  the  objec- 
tion that  the  answer  did  not  constitute  a  defense,  is 
viewed  strictly  on  appeal:  Specht  v.  Allen,  12  Or.  117. 

In  an  action  on  a  joint  obligation,  judgment  may  be  had 
against  one  defendant  proved  liable,  and  dismissed  as 
to  the  others:  Ah  Lep  v.  Gong  Choy,  13  Or.  2U5. 

Upon  taking  judgment  against  the  debtor  ordering  at- 
tached property  sold,  no  further  judgment  can  subse- 
quently be  entered  against  the  garnishee:  Carter,  Rice, 
&  Co.  V.  Koshland,  12  Or.  492;  modified.  Carter,  Rice, 
&  Co.  V.  Koshland,  13  Or.  615. 

Judgment  cannot  order  attached  property  sold,  when  at- 
tachment has  already  been  released:  Ah  Lep  v.  Gong 
Choy,  13  Or.  205. 

After  judgment  against  the  principal  debtor,  and  after 
the  garnishee  proceedings  are  subsequently  determined, 
judgment  against  the  garnishee  may  be  entered :  Carter, 
Rice,  &  Co.  V.  Koshland,  13  Or.  615. 

In  an  action  on  a  contract  against  several  defendants,  if 
the  proof  fails  as  to  some,  the  judgment  may  be  ren- 
dered against  those  proved  liable:  Fisk  v.  Ilenarie,  14 
Or.  29. 

Judgment  non  obstante  veredicto  cannot  be  rendered,  be- 
cause of  a  defective  statement  in  the  pleadings,  if  the 
defect  is  such  as  can  be  cured  by  verdict:  Andros  v. 
Childers,  14  Or.  447. 

Entry  of  verdict  of  guilty,  and  copy  of  warrant  of  execu- 
tion, do  not  constitute  a  judgment  in  a  criminal  case: 
Regan  v.  Territory,  1  W.  T.  31. 

District  Court  cannot,  even  with  consent  of  parties,  enter, 


332  Judgments  and  Decrees. 

Judgments  and  Decrees  (continued). 

as  of  a  past  term,  decree  made  at  chambers  in  vacation: 
Puget  Sound  Ag'l  Co.  v.  Pierre  Co,  1  W.  T.  75. 

Record  showing  motion  for  new  trial  overruled,  and  the 
following  entry:  "Whereupon  the  court  orders  that 
plaintiff  pay  the  costs  of  suit,  and  that  the  execution 
issue  therefor," — the  entry  is  a  valid  judgment:  Hunt- 
ington V.  Blakeney,  1  W.  T.  111. 

Judgment  on  note  cannot  be  entered  for  three  per  cent 
per  month  interest,  though  the  stipulation  in  the  note 
be  for  such  rate,  when  the  legal  rate  was  six  per  cent 
at  the  time  of  executing  the  note:  Roeder,  Peabody,  & 
Co.  v.  Brown,  1  W.  T.  112. 

Judgment  against  defendant  who  has  given  bond  for  re- 
lease of  attachment  may  be  entered  against  his  sure- 
ties also,  to  the  extent  of  their  stipulation  in  the  bond: 
Rodolph  V.  Mayer,  1  W.  T.  133. 

When  the  whole  amount  of  the  debt,  secured  by  mort- 
gage, is  due,  judgment  may  be  rendered  therefor,  to 
have  same  effect  as  a  lien,  as  other  judgments,  except 
as  to  manner  of  being  satisfied:  Hays  v.  Miller,  1  W.  T. 
143. 

Simple  decree  of  foreclosure  cannot  be  amended  nunc  pro 
tunc  to  make  it  a  lien  on  all  tlie  debtor's  property,  so 
as  to  prejudice  a  prior  mortgage  or  encumbrance  on 
other  property  of  the  mortgagor:  Id. 

Judgments  nunc  pro  tunc  are  only  rendered  in  further- 
ance of  justice;  never  to  work  injustice:  Id. 

Judgment  against  husband  for  reasonable  expenses  of 
wife,  including  counsel  fees,  is  properly  rendered  on 
dismissing  husband's  suit  for  divorce  at  his  motion: 
Thorndike  v.  Thorndike,  1  W.  T.  175. 

Power  of  judge  in  vacation  to  render  nunc  pro  tunc  judg- 
ment to  supply  omission  in  records  of  previous  term  is 
to  be  strictly  exercised  within  the  statute:  Hale  v. 
Finch,  1  W.  T.  517. 

Such  authority  does  not  appear  for  entering  the  judgment 
in  this  case,  nunc  pro  tunc,  by  judge  in  vacation,  to  have 
relation  as  of  term:  Id. 

Judgment  not  entered  in  journal,  nor  bearing  file  mark  of 
clerk,  may  be  established  by  competent  proof  after  death 
of  judge  who  rendered  it:  Eakin  v.  McCraith,  2  W.  T. 
112. 


Judgments  and  Decrees. 


333 


Judgments  and  Decrees  (continued). 

Judge  in  vacation,  at  chambers,may  render  judgment  in 
default  in  any  case  ponding  in  the  district,  though  he 
is  not  in  the  county  wliere  the  suit  was  commenced,  at 
the  time  of  rendering  judgment:  Murne  v.  Schwabacher 
Bros.  &  Co.,  2  W.  T.  130. 
Judgment  for  nominal  damages  is  properly  rendered  where 
the  pleadings  admit  the  facts,  and  the  plaintiff  moves 
for  judgment  on  the  pleadings  instead  of  going  to  trial 
on  the  question  of  the  amount  of  damages:  Had  Ian  v. 

Ott,  2  W.  T.  1G5.  wu       1, 

Judgment  presumed  entered  before  notice  of  appeal,  though 
the  latter  appears  on  the  record  before  the  former,  both 
being  in  the  records  of  the  same  day:  P.  S.  I.  Co.  v. 
Worthington,  2  W.  T.  472. 
2.   By  Confession. 

By  partner,  not  binding  on  his  partner  or  firm  property, 
unless  made  in  an  action  pending:  Richardson  v.  Ful- 
ler, 2  Or.  179. 
Sworn  statement  that  the  indebtedness  arose  on  promis- 
ing notes  for  money  is  insufficient:  Id. 
Statement  must  be  definite  and  particular:  Id. 
After  action  brought,  the  confession  need  not  state  the  facts 
out  of  which  the  indebtedness  arose:  Miller  v.  Bank  of 
British  Columbia,  2   Or.  291;  Miller  v.    Oregon   City 
Mfg.  Co.,  3  Or.  24. 
Such  judgment  can  only  be  impeached,  if  regular  on  its 
face, by  suit  inequity  for  fraud:  Id.;  Allen  v.  Norton,  G 
Or.  344.  . 

President  of  corporation  is  competent  to  confess  judgment 

against  a  private  corporation:  Id. 
Question  of  fraud  in  obtaining  should  not  be  determined 

on  motion  and  aflidavits:  Id. 
ColTrt  refused  to  set  aside  a  judgment  obtained  by  confes- 
sion in  favor  of  director  and  against  his  corporation :  Id. 
Judgment  indorsed  on  the  statement  and  entered  in  judg- 
ment-book have  each  the  force  of  duplicate  copies,  and 
each  is  original:  King  v.  Iliggins,  3  Or.  406. 
Omission  of  clerk  to  enter  same  in  judgment-book  does 
'  not  affect  judgment,  except  in  favor  of  one  who  has 

been  misled  by  it:  Id. 
Guardian  ad  litem  may  have  full  power  to  bind  an  infant 


334  Judgments  and  Decrees. 

Judgments  and  Decrees  (continued). 

defendant   by    admissions,    even  to   the   confession  of 
judgment:  English  v.  Savage,  5  Or.  518. 

A  judgment  by  confession  on  a  contingent  liabihty  is  vahd, 
and  may  be  enforced  by  execution:  Allen  v.  Norton,  6 

Or.  344. 
8.    By  Default. 

A  judgment  for  failure  to  answer  an  amended  complaint 
is  erroneous  unless  the  record  affirmatively  shows  that 
the  defendant  was  served  with  a  copy  of  the  amenxled 
complaint:  Tolmie  v.  Otchin,  1  Or.  95. 

A  default  against  corporation,  erroneous  unless  the  record 
shows  that  service  was  had  upon  proper  officer:  Wil- 
lamette Falls  etc.  Co.  v.  WiUiams,  1  Or.  112. 

Allegations  of  complaint  will  not  aid  return  in  this  re- 
spect: Willamette  Falls  etc.  Co.  v.  Clark,  1  Or.  113. 

Default,  where  record  shows  demurrer  to  complaint  un- 
disposed of,  is  error:  Willamette  Falls  etc.  Co.  v.  Smith, 
1  Or.  181. 

Upon  default  in  Justice's  Court,  District  Court  has  discre- 
tionary power  to  allow  answer  and  defense  on  appeal: 
Crandall  v.  Piette  and  Davidson,  1  Or.  226. 

Default  on  complaint  on  note  not  alleging  facts,  but  mere 
conclusions,  erroneous:  Williams  v.  Knighton,  1  Or. 
234. 

After  service  of  summons  to  appear  "forthwith  "  is  wholly 
void:  Hunsaker  v.  Coffin,  2  Or.  107. 

County  clerk  may  enter,  without  judicial  direction  in  cer- 
tain cases:  Graydon  v.  Thomas,  3  Or.  250;  Crawford  v. 
Beard,  12  Or.  447. 

In  so  doing  his  function  is  ministerial,  not  judicial:  Id. 

Such  judgment  will  not  be  disregarded  for  slight  infor- 
malities: Id. 

Judgment  for  want  of  answer  can  only  be  taken  when  de- 
fendant has  been  duly  served,  and  has  not  answered 
within  the  time  allowed  by  law:  Smith  v.  Ellendale  Mill 
Co.,  4  Or.  70;  TrullengerV.  Todd,  5  Or.  36;  Mitchell  v. 
Campbell,  14  Or.  454. 

When  answer  is  stricken  out  in  Justice's  Court,  and  defend- 
ant refuses  to  answer,  judgment  given  is  judgment  for 
want  of  answer,  and  not  appealable:  Long  v.  Sharp,  5 
Or.  438. 


Judgments  and  Decrees.  335 

Judgments  and  Decrees  (continued). 

Refusal  to  set  aside  default  is  discretionary,  and  will  not 
be  reviewed  on  appeal,  except  in  case  of  abuse:  White 
V.  Northwest  Stage  Co.,  5  Or.  99;  Bailey  v.  Williams,  6 
Or.  71. 

Default  in  Justice's  Court  set  aside  where  docket  does  not 
show  that  defendant  was  given  an  hour  to  appear: 
Gaunt  V.  Perkins,  8  Or.  354. 

Default  after  due  service,  but  without  allowing  defendant 
full  time  to  plead,  is  not  void,  but  erroneous:  Wood- 
ward V.  Baker,  10  Or.  491. 

Judgment  in  default  has  the  same  effect  as  res  judicata  as 
though  rendered  after  verdict:  Neil  v.  Tolman,  12  Or. 
289. 

Entry  of  default  by  clerk  in  vacation  is  not  unconstitu- 
tional: Crawford  v.  Beard,  12  Or.  447. 

Upon  service  of  summons  by  a  "  deputy  constable,"  the 
record  not  showing  the  appointment  of  any  such  person, 
is  void:  Prickett  v.  Cleek,  18  Or.  415. 

Default  upon  service  by  publication,  where  the  statutory 
requirements  have  not  been  complied  with,  and  before 
time  for  answering  expired,  is  void:  Montgomery  v. 
Manning,  1  W.  T.  434. 

Rendered   in   chambers  by  judge  at  another  county  in 
same  district  where  suit  is  commenced  is  valid:  Murne 
v.  Schwabacher  Bros.  &  Co.,  2  W.  T.  130. 
4.    Effect  and  Bar. 

Decision  of  surveyor-general  in  favor  of  occupant's  right 
of  possession  of  claim  bars  inquiry  by  the  courts:  Pin 
V.  Morris,  1  Or.  230. 

Decree  between  persons  having  no  interest  in  land  in  con- 
troversy void:  Lownsdale  v.  Portland,  1  Or.  381. 

Of-^ounty  Court,  in  action  in  which  title  to  real  property 
was  in  issue,  is  not  wholly  void,  and  the  sending  up 
the  papers  and  proceedings  on  appeal  operates  as  cer- 
tificate to  Circuit  Court:  Gird  v.  oNIorehouse,  2  Or.  53. 

Effect  of  judgment  in  another  state  against  joint  debtors, 
upon  party  appearing  therein:  Swift  v.  Stark,  2  Or.  97. 

Such  judgment  is  a  merger  of  the  original  contract  sued 
upon,  and  prima  facie  evidence  against  joint  debtors 
not  served  or  appearing:  Id. 

Defendant  appearing  in  the  original  cause  cannot  have 


836  Judgments  and  Decrees. 

Judgments  and  Decrees  (continued). 

the  same  re-examined  in  an  action  on  the  judgment: 
Id. 

Effect  of  decree  in  foreclosure  suit,  as  regards  subsequent 
lien  creditors  made  parties:  Chavener  v.  Wood,  2  Or. 
182. 

In  pleading  a  former  suit  as  a  bar,  it  is  necessary  to  state 
facts  showing  the  matter  determined  therein:  Heatherly 
V.  Hadley,  2  Or.  269. 

Judgments  bind  only  parties  and  privies:  Ritchey  v.  Ris- 
ley,  3  Or.  184. 

Of  inferior  tribunal  acting  within  its  jurisdiction,  binding 
until  reversed:  Warner  v.  Myers,  3  Or.  218. 

Under  statute  of  1854,  court  had  power  to  transfer  the 
property  of  the  party  in  fault  in  divorce  proceedings, 
and  vest  it  in  the  children:  Groslouis  v.  Northcut,  3 
Or.  394;  Doscher  v.  Blackiston,  7  Or.  403. 

Order  in  divorce  case  assigning  custody  of  minor  children 
to  one  of  the  parties  is  a  decree  appealable:  Pittman 
V.  Pittman,  3  Or.  472;  contra,  Tierney  v.  Tierney,  1 
W.  T.  568. 

Recital  in  a  decree  of  due  service  will  not  preclude  a  party 
from  denying,  when  disproved  by  the  return:  Heatherly 
V.  Hadley  and  Owen,  4  Or.  2;  Northcut  v.  Lemery,  8 
Or.  316. 

A  decree  of  divorce,  containing  no  provisions  as  to  prop- 
erty, the  complaint  making  no  allusion  thereto,  gives 
no  right  thereto:  Bamford  v.  Bamford,  4  Or.  30. 

Such  decree  cannot  be  disturbed  except  by  proceedings 
in  the  nature  of  bill  of  review:  Id. 

Party  cannot  claim  benefit  of  judgment,  and  at  the  same 

time  appeal  from  it:  Moore  v.  Floyd,  4  Or.  260;  Lyons 

V.  Bain,  1  W.  T.  482. 

'        .  .    . 

Decree  which  operates  as  a  deed  is  admissible  in  eject- 
ment, to  prove  title:  Dolph  v.  Barney,  5  Or.  193. 

Recital  in,  of  due  service  conclusive,  unless  clearly  con- 
tradicted in  the  judgment  roll:  Ladd  v.  Higley,  5  Or. 
296. 

Judgments  in  criminal  cases,  for  fine  or  for  costs  and 
disbursements,  may  be  enforced  as  in  a  civil  action: 
Whitley  v.  Murphy,  5  Or.  328. 

Judgments  of  the  territorial  courts  transferred  to  state 


Judgments  and  Decrees.  837 

Judgments  and  Decrees  (continued). 

courts,  by  act  of  June  4,  1859,  are  not  affected  by  the 
repeal  of  the  act,  and  are  enforceable  as  before:  Strong 
V.  Barnhart,  5  Or.  496. 

Decree  against  infant,  without  fraud,  where  the  court  has 
jurisdiction,  is  as  binding  as  against  an  adult:  English 
V.  Savage,  5  Or,  518. 

Judgment  of  County  Court,  admitting  will  to  probate,  is 
conclusive  until  vacated  or  impeached:  Hubbard  v 
Hubbard,  7  Or.  42. 

Decree  of  foreclosure  against  an  estate,  where  the  heirs  are 
not  made  parties,  is  void:  Renshaw  v.  Taylor,  7  Or.  315. 

Decree  divesting  title  to  real  property,  and  vesting  it  in 
another  person,  is  inoperative  to  divest  the  title,  if  the 
court  had  no  power  to  vest  it  in  such  person:  Doscher 
V.  Blackiston,  7  Or.  403. 

The  effect  of  a  decree  is  interpreted  and  determined  by 
the  intention  in  making  it:  Id.;  Harvey's  Heirs  v. 
Wait,  10  Or.  117. 

Effect  of  a  decree  in  equity,  on  a  judgment  at  law,  con- 
cerning the  same  property:  Starr  v.  Stark,  7  Or.  500. 

Decree  in  equity  operates  on  the  person,  and  not  on  the 
judgment,  in  such  case:  Id. 

Decree  establishing  a  party's  right  to  property,  from  which 
he  has  been  ejected  at  law,  operates  on  the  parties,  and 
may  enjoin  the  enforcing  of  the  judgment:  Id. 

Conclusive  as  to  all  issues,  whether  actually  litigated  or 
not,  and  parol  evidence  is  not  admissible  to  show  that 
certain  issues  were  withdrawn:  Barrett  v.  Failing,  8  Or.. 
152;  Glenn  v.  Savage,  14  Or.  567. 

Judgment  on  note  of  principal,  no  bar  to  action  against 
principal  and  surety  on  another  note  given  as  collateral 
security:  McCullough  v.  Hellman,  8  Or.  191. 

Decision  of  board  of  school  land  commissioners  is  con- 
clusive, and  cannot  be  reviewed  by  state  courts:  Corpe 
v.  Brooks,  8  Or.  222. 

The  principle  of  stare  decisis  is  the  policy  of  the  courts, 
especially  where  to  overrule  a  former  decision  will  work 
a  conviction:  State  v.  Clark,  9  Or.  466. 

W-hether  a  decree  in  administration  proceeding  is  final 

or  not  depends  on  the  intention  of  the  court:  Harvey's- 

Heirs  v.  Wait,  10  Or.  117. 
Or.  Dig.— 22 


SS8  Judgments  and  Decrees. 

Judgments  and  Decrees  (continued). 

Decisions  of  secretary  of  state  in  the  allowance  of  claims 
are  not  judicial  in  their  nature  or  effect:  State  v.  Brown, 
10  Or.  215. 

Order  dissolving  or  refusing  to  dissolve  an  attachment  is  a 
final  order  under  the  Code:  Sheppard  v.  Yocum,  11  Or. 
234;  Suffern  v.  Chisholm,  1  W.  T.  486. 

Judgment  is  conclusive  as  to  all  matters  litigated,  or  that 
might  have  been  litigated,  in  the  suit:  Neil  v.  Tolman, 
12  Or.  289;  Glenn  v.  Savage,  14  Or.  567. 

Judgment  in  default  has  the  same  effect  as  judgment 
after  verdict,  as  res  judicata:  Id. 

In  an  attachment  suit,  a  judgment  ordering  the  property 
sold,  as  required  by  act  of  1878  (sec.  157,  Hill's  A.  L.), 
ends  the  proceedings  against  garnishee:  Carter,  Rice,  & 
Co.  V.  Koshland,  12  Or.  492;  S.  C.  modified,  13  Or.  615. 

No  general  judgment  against  the  garnishee  can  subse- 
quently be  rendered  in  such  suit  after  judgment  in  the 
main  suit:  Id. 

Judgment,  though  erroneous,  is  valid  until  reversed  on 
appeal:  Nicklin  v.  Hobin,  13  Or.  406. 

Decree  quieting  title  does  not  bind  one  who  holds  unre- 
corded deed,  not  a  party  to  the  suit,  where  the  adverse 
claimant  has  notice,  and  the  deed  is  placed  of  record 
during  the  suit:  Walker  v.  Goldsmith,  14  Or.  125. 

Judgment  against  a  defendant  for  divorce  and  alimony 
cannot  bind  a  third  person  mentioned  therein,  not  a 
party,  by  enjoining  him  from  paying  over  money: 
Madison  v.  Madison,  1  W.  T.  60. 

Judgment  rendered  upon  the  merits  will  not  be  affected 
by  an  erroneous  ruling  on  an  attachment:  Williams  & 
Co.  V.  Miller  &  Co.,  1  W.  T.  88. 

Judgment  on  foreclosure  will  have  same  effect  as  a  lien 
as  other  judgment,  only  differing  in  the  manner  of  be- 
ing satisfied,  if  the  whole  debt  is  due,  and  the  judg- 
ment is  rendered  accordingly:  Hays  v.  Miller,  1  W.  T. 
143. 

But  simple  decree  for  sale  of  mortgaged  premises  does 
not  have  effect  as  a  lien  on  property  outside  the  mort- 
gage, and  cannot  be  amended  nunc  pro  tunc  in  this 
respect,  to  the  prejudice  of  intervening  rights:  Id. 

Decree  is  final  when  it  disposes  of  whole  controversy,  leav- 


Judgments  and  Decrees.  339 

Judgments  and  Decrees  (continued). 

ing  nothing  for  court  to  do:  Sloop  Lconede  v.  United 

States,  1  W.  T.  153. 
Otherwise,  is  interlocutory,  though  it  may,  to  a  great  ex- 
tent, dispose  of  the  merits  of  the  cause:  Id. 
Refusal  of  District  Court  to  allow  the  docketing  of  a  cause 
on  appeal  from  a    Justice's  Court,  for  the  purpose  of 

showing  the  fact  of  destruction  of  the  record  by  fire,  and 

to  supply  the  loss,  is  a  final  judgment:  Mullen  v.  Mul- 
len, 1  W.  T.  192. 
Ruling  on  a  motion  to  vacate  a  judgment  is  not  a  final 
judgment  within  the  meaning  of  the  Code:    Hancock 

V.  Stewart,  1  W.  T.  323. 
Sentence  in  criminal  case  constitutes  the  final  judgment: 

Lytic  V.  Territory,  1  W.  T.  435. 
A  pro  forma  judgment  is  not  a  final  judgment,  unless 

transcript  contains  certificate  prescribed  in  section  18, 

page  25,  Laws  of  1875:  Mullen  v.  McGilvrey,  1  W.  T. 

513. 
Order  of  District  Court   awarding  custody,   and    fixing 

allowance  for  child,  is  interlocutory,  not  final:  Tierncy 

V.  Tierney,  1  W.  T.  568. 
A  collusive  decree  of  foreclosure  having  been  entered  with 

the  intent  of  subordinating  the  rights  of  a  third  party, 

it  being  a  sham   and    a  fraud,  determines  no  rights, 

and   equity  will  not   give  it  effect:    Connoly  v.  Cun- 
ningham, 2  W.  T.  242. 
5.   Lien. 

Judgment  at  law  is  not  a  lien  on  an  equitable  interest  in; 

land:   Smith  v.  Ingles,  2  Or.  43;  Bloomfield  v.  Huma- 

son,  11  Or.  229. 
Plaintiff"  in  execution,  becoming  purchaser,  extinguishes' 

his^specific  lien  on  the  premises:   Chavener  v.  Wood,  2 

Or.  182. 
Judgment  lien  may  be  kept  alive  until  paid:    Murch  v. 

Moore,  2  Or.  189;  Dearborn  v.  Patton,  3  Or.  420;  Strong 

V.  Barnhart,  5  Or.  49G. 
Lien  begins  from  time  of  docketing,  subject  to  known 

equitable  rights  in  the  land:    Stannis  v.  Nicholson,  2 

Or.  332. 
Filing   transcript  on  appeal  from  justice,  not  sufficient 

docketing  to  give  lien  on  realty:    Dearborn  v.  Patton, 

4  Or.  58. 


340  Judgments  and  Decrees. 

Judgments  and  Decrees  (continued). 

Repeal  of  statute;  an  existing  lien  not  destroyed  by  act 
of  1864  in  regard  to  judgment  liens:  Dearborn  v.  Pat- 
ton,  3  Or.  420. 

Durat'on  of  existing  lien  extended  by  new  statute  indefi- 
nitely: Id. 

Effect  of  docketing  judgment  in  partnership  name,  where 
the  judgment  debtor's  name  is  properly  entered,  is  the 
same  as  notice  as  though  each  partner's  name  was  en- 
tered: Id. 

Under  act  of  1855,  certified  transcript,  and  not  mere  ab- 
stract of  justice's  judgment,  must  be  filed  with  county 
clerk  to  acquire  lien  on  realty:  Dearborn  v.  Patton,  4 
Or.  58. 

Time  for  acquiring  lien  of  justice's  judgment  on  realty 
being  expired,  there  is  no  right  to  sue  in  Circuit  Court, 
and  make  it  such  lien,  without  a  showing  in  excuse  for 
laches:   Pitzer  v.  Russel,  4  Or.  124. 

In  felony  cases,  state  has  a  lien  for  satisfaction  of  judg- 
ment from  time  of  commission  of  the  offense:  Whitley 
V.  Murphy,  5  Or.  328;  State  v.  Munds,  7  Or.  80. 

In  such  cases,  the  lien  will  be  satisfied  from  propert}'  con- 
veyed, in  the  inverse  order  of  alienation,  and  that  last 
sold  is  first  to  be  charged:   Knott  v.  Shaw,  5  Or.  482. 

In  felony  cases,  is  enforced  by  execution  as  in  civil  ac- 
tions; but  if  the  property  has  been  conveyed  away, 
must  be  by  suit  in  equity:  State  v.  Munds,  7  Or.  80. 

Lien  in  criminal  case  must  be  docketed  within  reason- 
able time  to  bind  a  purchaser  without  notice;  after 
next  term  of  court,  not  reasonable:  Id. 

In  criminal  case,  does  not  attach  to  homestead  tlie  title  to 
which  is  in  the  United  States:  State  v.  O'Neil,  7  Or.  141. 

Judgments  rank  as  liens  on  after-acquired  property  in  the 
order  of  their  docketing:  Creighton  v.  Leeds,  Palmer, 
&  Co.,  9  Oi:.  215. 

Any  mark  in  the  judgment-lien  docket  usually  employed 
in  business  to  indicate  dollars  and  cents  is  suflicient  to 
denote  that  the  figures  represent  money:  De  Lash  mutt 
V.  Sell  wood,  10  Or.  319. 

Junior  lien-holder  not  made  party  is  not  affected  by  fore- 
closure of  a  prior  mortgage,  and  has  a  right  to  sell  on  ex- 
ecution, and  is  not  limited  to  mere  right  to  redeem:  Id. 


Judgments  and  Decrees  341 

Judgements  and  Decrees  (continued). 

Lien  acquired  with  notice  of  prior  unrecorded  deed,  and 
not  in  good  faith,  will  not  have  priority:  Baker  v. 
Woodward,  12  Or.  3. 

Judgment  of  foreclosure,  when  entered  for  the  full  amount 
due  under  the  mortgage,  may  be  made  a  lien  upon  all 
the  debtor's  property,  as  other  judgments,  differing 
only  in  the  manner  of  being  satisfied:  Hays  v.  Miller, 
1  W.  T.  143. 

Simple  decree  for  foreclosure  does  not  constitute  a  lien  on 
property  outside  the  mortgage:   Id. 

Such  decree  cannot  be  amended  nunc  pro  tunc  to  make  it 
a  lien  upon  all  the  debtor's  property,  to  the  prejudice 
of  the  rights  of  intervening  lienors:  Id. 
6.    Revival. 

On  application  for  leave  to  issue  execution  on  lapsed 
judgment,  etc.,  validity  may  be  inquired  into:  Ilun- 
saker  v.  Coffin,  2  Or.  107. 

Domestic  judgment  is  not  barred  by  statute  of  limitations 
in  ten  \-ears,  and  may  be  kept  alive  until  payment 
thereof  is  made:  Murch  v.  Moore,  2  Or.  188;  Dearborn 
V.  Patton,  3  Or.  420;  Strong  v.  Barnhart,  5  Or.  496. 

Proceeding  to  keep  judgment  alive  is  strictly  analogous  to 
scire  facias:  Id. 

What  facts  are  pleadable  on  motion  and  answer  thereto 
in  such  proceeding:  McCracken  v.  Swartz,  5  Or.  62. 

On  defense  of  nul  tiel  record,  trial  court  having  inspected 
the  record,  the  Supreme  Court  will  not  review  tlie  de- 
cision, not  having  the  record  before  it:  Id.;  Ladd  and 
Reed  v.  Higley,  5  Or.  296. 

The  proceeding  is  a  separate  proceeding,  and  a  separate 
judgment  roll  is  to  be  made  up  therein:  Id. 

On  appeal  the  court  will  not  look  to  the  evidence  heard 
beTbw,  unless  in  the  judgment  roll:  Id. 

After  five  years,  domestic  judgment  can  only  be  enforced 
by  obtaining  leave  to  issue  execution  under  section  292 
of  the  Code  (sec.  295,  Hill's  A.  L.):  Strong  v.  Barnhart, 
5  Or.  496. 

In  a  proceeding  to  revive  a  dormant  judgment,  jurisdic- 
tion will  not  be  inquired  of,  unless  the  want  thereof  ap- 
pears upon  face  of  the  record:  Strong  v.  Barnhart,  6 
Or.  93. 


342  Judgments  and  Decrees. 

Judgments  and  Decrees  (continued). 

Same  presumption  in  favor  of  judgment  in  proceedings  to 

revive,  as  on  collateral  attack:  Id. 
Only  defense  admissible  is  nul  tiel  record,  or  satisfaction: 

Id. 
Justice's  Court  has  not,  and  Circuit  Court  has,  jurisdiction 

to  revive  a  justice's  judgment,  a  transcript  of  which  has 

been  docketed  in  the  Circuit  Court:  Glaze  v.  Lewis,  12 

Or.  347. 

7.  Satisfaction. 

A  court  has  power  to  direct  cancellation  of  record  of  its 
judgment  when  it  is  made  to  appear  that  it  is  satisfied: 
Provost  V.  Millard,  3  Or.  370. 

Court  refused  to  direct  party  to  appear  and  cancel  satis- 
fied judgment  in  another  district:  Id. 

After  accepting  and  satisfying  judgment,  party  cannot  ap- 
peal from  it:  Moore  v.  Floyd,  4  Or.  260;  Lyons  v.  Bain, 
1  W.  T.  482. 

After  satisfaction,  additional  cost  bill  cannot  be  filed,  and 
execution  thereon  issued:  Snipes  v.  Breezley,  5  Or. 
420. 

Party  is  not  precluded  by  paying  judgment  from  appeal- 
ing therefrom:  Edwards  v.  Perkins,  7  Or.  149. 

Satisfaction  of  judgment  against  surety  operates  as  satis- 
faction of  a  separate  judgment  against  principal,  though 
the  former  was  for  an  amount  less  than  the  latter:  Cox 
V.  Smith  and  Forward,  10  Or.  418. 

An  attempted  reservation  by  the  judgment  creditor  in  his 
entry  of  satisfaction  of  the  judgment  against  the  surety 
of  "all  rights"  against  the  principal  debtor  is  void, 
though  the  judgment  against  the  principal  is  the  larger 
judgment:  Id. 

By  accepting  fruits  of  a  decree,  party  is  estopped  from  ap- 
pealing: Lyons  v.  Bain,  1  W.  T.  482. 

The  fact  that  all  the  money  received,  excepting  the  statu- 
tory attorney's  fee,  was  returned,  does  not  change  the 
rule:  Id. 

Acceptance  by  the  attorney  as  a  general  rule  will  be  re- 
garded as  acceptance  by  his  client:  Id. 

8.  Setting  Aside  and  Vacation. 

Under  Code,  court  can  relieve  a  party  from  a  judgment 
taken  inadvertently,  witliout  resort  to  equity,  and  in- 


Judgments  and  Decrees.  343 

Judgments  and  Decrees  (continued). 

junction  will  not  issue  to  prevent  the  enforcement  of  the 
judgment:  Wells,  Fargo,  &  Co.  v.  Wall,  1  Or.  295. 
Bill,  to  set  aside  a  judgment  at  law,  must  show  specific 
fraud,  accident,  surprise,  or  mistake:  Snyder  v.  Vannoy 
and  Hyland,  1  Or.  344. 
And  it  must  appear  that  the  matters  complained  of  could 
not  have  been  interposed  in  the  suit:  Id. 

Judgment  by  default  entered  by  county  clerk  not  set 
aside  for  slight  informalities:  Graydon  v.  Thomas,  3 
Or.  250. 

Bill  of  review  to  set  aside  judgment  is  an  original  bill,  not 
entertained  by  virtue  of  appellate  jurisdiction:  White 
V.  Allen,  3  Or.  103;  Kennard  v.  Sax,  3  Or.  263. 

A  defective  decree  may  be  reformed  under  a  prayer  for 
general  relief  in  the  bill:  Id. 

Where  debt  is  justly  owing,  equity  will  not  interfere, 
though  judgment  is  erroneous:  Kennard  v.  Sax,  3  Or. 
263. 

That  defendant  was  insane  at  time  of  trial,  not  sufficient 
allegation  of  want  of  jurisdiction  to  set  aside:  Norton 
V.  Harding,  3  Or.  361.' 

To  warrant  review,  reason  must  be  shown  why  the  facts 
were  not  presented  and  determined:  Id. 

On  motion  to  open  decree  under  section  57  of  the  Code 
(sec.  58,  Hill's  A.  L.),  fact  that  affidavit  for  publica- 
tion was  made  on  information  only  may  be  considered: 
Smith  V.  Smith,  3  Or.  363. 

On  such  motion,  counter-affidavits  may  be  filed:  Id. 

What  is  a  collateral  and  what  a  direct  attack:  Heatherly 
V.  Hadley  and  Owen,  4  Or.  1. 

It  must  be  shown  that  the  facts  relied  upon  to  set  aside 
decree  were  not  and  could  not  be  known  at  time  when 
decree  was  rendered:  Bamford  v.  Bamford,  4  Or.  30; 
0.  R.  &  N.  Co.  v.  Gates,  10  Or.  514;  Crews  v.  Ricliards, 
14  Or.  442. 

Granting  or  refusal  of  motion  to  set  aside  default  dis- 
cretionary, and  except  in  case  of  abuse,  not  reviewable: 
-  W^hite  V.  Northwest  Stage  Co.,  5  Or.  99;  Bailey  v.  Wil- 
liams, 6  Or.  71;  Mitchell  v.  Campbell,  14  Or.  454. 

A  judgment  is  not  vacated  by  appeal  in  criminal  case: 
Whitley  v.  Murphy,  5  Or.  328. 


344  Judgments  and  Decrees. 

Ju Pigments  and  Decrees  (continued). 

Bill  must  set  out  the  matters  determined,  in  such  man- 
ner that  in  setting  aside  the  judgment  the  court  can 
adjust  the  rights  of  the  parties:  Saunders  v.  Pike,  6 
312. 

In  the  absence  of  fraud,  the  judgment  will  not  be  set  aside 
for  an  irregularity  which  works  no  injury:  Id. 

Decree,  entered  by  consent  against  one  so  infirm  as  not  to 
understand,  will  be  opened  in  equity  to  protect  the 
rights  of  the  latter:  Watson  v.  Smith,  7  Or.  448. 

Justice  cannot  set  aside  his  judgment,  and  grant  new 
trial:  Griffin  v.  Pitman,  8  Or.  342. 

Judgment  in  default  in  Justice's  Court,  docket  not  show- 
ing that  defendant  was  given  an  hour  to  appear,  set 
aside  on  review:  Gaunt  v.  Perkins,  8  Or.  354. 

Everj''  court  has  power,  whether  at  same  or  subsequent 
term,  to  vacate  its  own  decree  rendered  without  juris- 
diction: Ladd  and  Tilton  v.  Mason,  10  Or.  308. 

Judgment  in  Justice's  Court  obtained  by  fraud  against 
defendant  having  a  good  defense  will  be  set  aside,  and 
enjoined  in  equity,  and  defendant  allowed  to  answer: 
Marsh  v.  Perrin,  10  Or.  364. 

Judgment  of  Justice's  Court  cannot  be  set  aside  for  intimi- 
dation of  witnesses  by  a  broil  in  the  court,  on  account 
of  which  a  party  withdrew;  remedy  is  by  appeal:  Scog- 
gin  V.  Hall,  12  Or.  372. 

Though  bills  for  review  have  been  abolished  in  form  by 
the  Code,  the  remedy  to  set  aside  a  decree  exists  by 
suit  in  equity:  Crews  v.  Richards,  14  Or.  442. 

But  such  suit  cannot  be  maintained  where  the  facts  re- 
lied on  were  both  known,  and  could  have  been  used  in 
the  former  suit:  Id. 

Refusal  to  set  aside  a  default  upon  proper  showing  made 
is  an  abuse  of  discretion:  Mitchell  v.  Campbell,  14  Or. 
454. 

Delay  in  suing  to  set  aside  a  fraudulent  decree  does  not 
amount  to  laches,  unless  the  party  had  knowledge  or 
means  of  knowing  the  fraud:  Sedlak  v.  Sedlak,  14  Or. 
540. 

But  acquiescence  and  enjoyment  of  the  benefits  of  a  de- 
cree for  thirty  years  amounts  to  fatal  laches,  and  bars 
relief:  Id. 


Judgments  and  Decrees.  345 

Judgments  and  Decrees  (conti'nued). 

Dcfecti\'e  aflidavit  in  an  attachment  not  cause  for  setting 
aside  judgment:  Nesqually  Mill  Co.  v.  Taylor,  1  W.  T.  1. 

Defect  in  record  not  materially  affecting  merits,  not  suf- 
ficient cause  for  setting  aside  judgment:   Id. 

District  Court  has  no  power  to  vacate  judgment  at  the 
next  term  of  court  subsequent  to  the  term  in  which 
rendered:  Hancock  v.  Stewart,  1  W.  T.  323. 

Court  of  equity  cannot  set  aside  a  decision  made  by  a 
competent  tribunal,  as  the  Secretary  of  Interior  in  a 
proper  case  for  his  decision,  except  for  fraud  or  mis- 
take: Sparks  V.  Brown,  2  W.  T.  426. 

9.  Correction. 

Defective  decree  may  be  reformed  under  a  prayer  for  gen- 
eral relief:  White  v.  Allen,  3  Or.  103. 

Motion  to  amend  decree  too  late  after  seventeen  months' 
delay  without  showing  excuse  for  the  delay:  Chapman 
V.  Wilbur,  5  Or.  299. 

Correction  of  decree  of  foreclosure  is  unnecessary  to  make 
same  properly  describe  the  lands,  where  the  descrip- 
tion is  sufficient  to  identify  same:  Board  S.  L.  Com.  v. 
Wiley  and  Davis,  10  Or.  86. 

Simple  decree  of  foreclosure  cannot  be  amended  by  nunc 
pro  tunc  order  to  be  a  lien  upon  property  not  included 
in  the  mortgage,  to  the  prejudice  of  the  rights  of  inter- 
vening lienors:  Hays  v.  Miller,  1  W.  T.  143. 

Power  of  judge  in  vacation  to  correct  record  of  previous 
term  is  to  be  strictly  exercised  within  the  statute: 
Hale  V.  Finch,  1  W.  T.  517. 

10.  Impeachment. 

Court  will  not  go  behind  the  execution  upon  proceedings 
to  confirm  a  sale  on  execution,  and  on  mere  motion 
question  the  validity  of  the  judgment:  Griswold  v. 
Stoughton,  2  Or.  61. 

Judgment  by  default,  when  wholly  void,  may  be  attacked: 
Hunsaker  v.  Coflin,  2  Or.  107. 

But  not  collaterally,  where  the  record  shows  summons 
and  complaint  duly  served:  Woodward  v.  Baker,  10 
Or.  491. 

Judgment  by  confession,  regular  on  its  face,  may  be  at- 
tacked in  equity,  for  fraud  only:  Miller  v.  Bank  of 
British  Columbia,  2  Or.  291. 


346  Judgments  and  Decrees. 

Judgments  and  Decrees  (continued). 

On  collateral  attack,  court  will  not  go  outside  of  justice's 
docket  to  learn  that  constable  was  not  duly  appointed: 
White  V.  Thompson,  3  Or.  115. 

Nor  to  learn  that  the  appearance  of  defendant  was  special: 
Id. 

Presumption  of  regularity  of  judgment  does  not  arise 
where  the  pleadings  in  the  case  show  that  no  jurisdic- 
tion was  obtained:  Groslouis  v.  Northcut,  3  Or.  394. 

Recitals  in  decree,  of  due  service,  when  the  record  shows 
otherwise,  do  not  aid  the  decree  on  collateral  attack: 
Heatherly  v.  Hadley  and  Owen,  4  Or.  2;  Northcut  v. 
Lemery,  8  Or.  316. 

Every  intendment  in  favor  of  a  judgment  rendered  by 
court  having  jurisdiction:  Fulton  v.  Earhart,  4  Or.  62. 

Error  does  not  render  judgment  void  when  collaterally 
attacked:  Dolph  v.  Barney,  5  Or.  192. 

Judgment  not  void,  unless  court  had  no  jurisdiction  of 
parties  or  of  subject-matter:  Id. 

Foreign  judgment,  regular  on  its  face,  introduced  as  evi- 
dence, may  be  attacked  by  extrinsic  evidence  of  fraud 
or  want  of  notice:  Murray  v.  Murray,  6  Or.  17. 

Same  rule  as  to  collateral  attack  of  judgment  by  con- 
fession as  other  judgments:  Allen  v.  Norton,  6  Or.  344. 

Judgment  in  ejectment  is  conclusive  as  to  defendant's 
legal  title,  and  right  of  possession  on  collateral  attack: 
Hill  V.  Cooper,  8  Or.  254. 

Judgment  against  a  married  woman  as  surety  on  a  note 
cannot  be  impeached  collaterally,  where  the  record  does 
not  show  she  was  a  married  woman:  Farris  v.  Hayes, 
9  Or.  81. 

Whether  defective  affidavit  on  publication  of  summons 
may  be  taken  advantage  of  on  collateral  attack,  qusere; 
but  an  insufficient  order  of  publication  may:  Odell  v. 
Campbell,  9  Or.  298. 

What  publication,  and  proof  of  publication,  insufficient 
to  sustain  judgment  on  collateral  attack:  Northcut  v. 
Lemery,  8  Or.  316;  Odell  v.*Campbell,  9  Or.  298. 

Presumption  in  favor  of  judgment  of  court  of  general 
jurisdiction  does  not  obtain  where  the  court  is  exercis- 
ing special  statutory  power:  Northcut  v.  Lemery,  8  Or. 
316;  Odell  v.  Campbell,  9  Or.  298. 


Judgments  and  Decrees.  847 

Judgments  and  Decrees  (continued). 

Judgment  by  default  after  service,  but  without  allowing 
defendant  full  time  to  plead,  is  not  open  to  collateral 
attack:  Woodward  v.  Baker,  10  Or.  491. 

Decree  of  court  on  distribution  of  an  estate,  ordering  pay- 
ment of  the  share  of  a  devisee  to  be  paid  to  an  assignee 
thereof,  is  void  on  collateral  attack:  Harrington  v.  La 
Rocque,  13  Or.  344. 

Where  proper  service  has  been  had,  the  court  may  allow 
amendment  of  record  to  show  that  fact,  after  rendition  of 
judgment  upon  the  assumption  of  due  service,  and  such 
amended  return  protects  the  judgment  from  collateral 
attack:  Blinn  v.  Crosby,  2  W.  T.  109. 
11.   Action  on,  and  Defense. 

Defendant  in  a  judgment  cannot  be  garnished  by  creditor 
of  plaintiff  therein:  Norton  v.  Winter  and  Lattimer,  1 
Or.  47;  Despain  v.  Crow,  14  Or.  404. 

Efllect  of  foreign  judgment  against  joint  debtors  in  action 
in  Oregon  thereon:  Swift  v.  Stark,  2  Or.  97. 

Domestic  judgment  does  not  fall  within  statute  of  limita- 
tions: Murch  V.  Moore,  2  Or.  189;  Dearborn  v.  Patton, 
3  Or.  420;  Strong  v.  Barnhart,  5  Or.  496. 

In  Oregon  it  is  in  the  power  of  a  judgment  creditor  to 
keep  judgment  alive  forever:  Id. 

In  pleading  judgment  of  court  of  special  jurisdiction,  need 
not  state  facts  that  show  the  court  had  jurisdiction: 
Toby  V.  Ferguson,  3  Or.  27. 

Judgment  creditor  has  no  right  to  sue  on  domestic  judg- 
ment, unless  necessary  to  give  him  the  full  benefit  of 
his  judgment:  Pitzer  v.  Russell,  4  Or.  124. 

So  where  he  has  failed  to  make  judgment  of  justice  a  lien 
on  debtor's  realty,  he  cannot  sue  thereon  to  acquire 
such  lien  without  explaining  his  laches:  Id. 

Riglit  of  action  on  undertaking  for  costs  does  not  pass  to 
assignee  by  assignment  of  judgment:  Dray  v.  Mayer,  5 
Or.  185. 

Statute  of  limitations  does  not  apply  to  proceedings  under 
section  292  of  the  Code  (sec.  295,  Hill's  A.  L.),  in  re- 
ference  to  enforcing   dormant   judgments:    Strong  v. 
'Barnhart,  5  Or.  496. 

Decree  of  divorce  must  be  pleaded  in  answer  in  equity  to 
be  admissible  as  evidence:  Murray  v.  Murray,  6  Or.  26. 

Allegation  of  judgment  of  court  of  inferior  jurisdiction 


348  Judgments  and  Decrees. 

Judgments  and  Decrees  (continued). 

must  show  facts  conferring  the  jurisdiction:    Dick  v. 
Wilson,  10  Or.  490. 

Pleading  judgment  of  a  Justice's  Court  must  allege  the 
beginning   of  the    action,  the    court,    the    nature    and 
amount  of  the   claim,   and    that  judgment  ^Yas  duly 
given  thereon:  Page  &  Co.  v.  Smith,  13  Or.  410. 
Judgment  Roll. 

Absence  of  material  paper  from  judgment  roll  no  ground 
for  reversing  judgment:  Carland  v.  Heineborg,  2  Or. 
io. 

Return,  in  obedience  to  writ  of  review,  is  part  of  judgment 
roll:  Johns  v.  Marion  County,  4  Or.  46. 

Under  the  Code,  the  record  includes  all  papers  and  pro- 
ceedings in  the  judgment  roll:  Tustin  v.  Gaunt,  4  Or. 
305. 

Judgment  roll  is  proper  preliminary  proof  to  warrant  proof 
of  sheriff's  sale:  Gilmore  v.  Taylor,  5  Or.  89. 

What  is  necessarv  in  judgment  roll  in  probate  proceedings: 
Id. 

Separate  judgment  roll  necessary  in  proceedings  for  leave 
to  issue  execution  on  dormant  judgment:  Ladd  v.  Hig- 
ley,  5  Or.  296. 

Jurors  cannot  be  called  to  testify  in  subsequent  suit  that 
issues  included  in  the  judgment  roll  were  not  tried:  Un- 
derwood V.  French,  6  Or.  66. 

Motion  for  new  trial  and  proceedings  thereon  are  not  part 
of  judgment  roll,  and  must  be  put  in  the  bill  of  excep- 
tions to  be  a  part  of  the  roll  to  be  considered  on  appeal: 
Oregonian  R'y  Co.  v.  Wright,  10  Or.  162;  Chung  Yow  v. 
Hop  Chong,  11  Or.  220;  State  v.  Drake,  11  Or.  396; 
McAllister  v.  Territory,  1  W.  T.  360;  but  see  Bowen  v. 
State,  1  Or.  270;  Kearney  v.  Snodgrass,  12  Or.  311; 
State  V.  Becker,  12  Or.  318;  Jones  v.  Wiley,  1  W.  T. 
603. 

Where  statute  does  not  prescribe  what  papers  constitute 
the  roll,  all  filed  should  be  placed  in  the  roll:  Ankeny 
V.  Fairview  Milling  Co.,  10  Or.  390. 

Affidavits  in  support  of  motion  for  order  to  abate  nuisance 
are  properly  in  the  roll:  Id. 

Referee's  report  in  action  at  law  is  no  part  of  the  judg- 
ment roll  or  transcript:  Osborn  v.  Graves,  11  Or.  526. 


Jurisdiction.  349 

Judicial  Sales.     See  Executions,  and  Proceedings  Supple- 
mental; Guardian  and  Ward;  Mortgages. 
Jurisdiction.     See  Equity. 

1.  In  General. 

2.  Supreme  Court. 

3.  Circuit  and  District  Courts. 

4.  County  Court. 

5.  Justice  of  the  Peace. 

6.  Other  Tribunals  and  Officers. 
.7.   Particular  Cases. 

1.   In  General. 

Where  the  power  to  act  is  inherent,  the  act  is  valid  though 

irregularly  done;  otherwise,  where  the  power  is  special: 

Cason  V.  Stone,  1  Or.  39. 
In  inferior   tribunals,  jurisdictional   facts   must   appear 

affirmatively  upon  the  face  of  the  record:  Thompson  v. 

Multnomah  County,  2  Or.  34;  Johns  v.  Marion  County, 

4  Or.  46;  Dick  v.  Wilson,  10  Or.  490. 

Inferior  tribunal  having  once  acquired  jurisdiction,  sub- 
sequent proceedings  presumed  regular:  Id. 

In  pleading  judgment  of  court  of  special  jurisdiction,  need 
not  state  the  facts  that  confer  jurisdiction:  Toby  v.  Fer- 
guson, 3  Or.  27. 

Though  complaint  may  not  state  cause  of  action,  court 
may  have  jurisdiction:  Norman  v.  Zieber,  3  Or.  197. 

If  inferior  tribunal  acts  within  its  jurisdiction,  its  decision, 
though  erroneous,  is  binding  until  reversed:  Warner  v. 
Myers,  3  Or.  218;  C.  &  G.  Road  Co.  v.  Douglas  County, 

5  Or.  280. 

Judgment  of  court  having  jurisdiction  conclusive,  and 
that  defendant  was  insane  at  time  of  trial,  is  not  suffi- 
cient showing  of  want  of  jurisdiction:  Norton  v.  Hard- 
ing, 3  Or.  361. 

Every  court  has  power  over  its  own  process  and  to  prevent 
its  abuse:  Provost  v.  Millard,  3  Or.  370. 

May  direct  a  decree  of  record  before  it,  to  be  canceled 
wlien  satisfied:  Id. 

Every  intendment  in  favor  of  judgment  of  court  of  com- 
petent jurisdiction:  Groslouis  v.  Northcut,  3  Or.  394; 
'  Fulton  V.  Earhart,  4  Or.  61;  Tustin  v.  Gaunt,  4  Or.  305. 

But  even  after  judgment,  if  on  the  face  of  the  pleadings 
the  court  had  no  jurisdiction,  no  presumption  in  its 
favor  arises:  Id. 


350  Jurisdiction. 

Jurisdiction  (continued). 

Having  obtained  jurisdiction  for  one  purpose,  equity  holds 
it  for  all  connected  therewith:  Heatherly  v.  Hadley 
and  Owen,  4  Or.  1. 

Record  reciting  facts  requisite  to  confer  jurisdiction  is 
conclusive  when  attacked  collaterally:  Id. 

When  the  record  is  silent,  jurisdiction  is  presumed:  Id.; 
Tustin  V.  Gaunt,  4  Or.  305. 

When  the  record  shows  that  the  cause  of  action  or  the 
parties  were  beyond  the  jurisdiction  of  the  court,  no 
presumption  in  favor  of  judgment,  and  it  is  void:  Id.; 
Northcut  V.  Lemery,  8  Or.  316. 

Strict  compliance  necessary  in  attempting  to  acquire  ju- 
risdiction by  statute:  Id.;  Northcut  v.  Lemery,  8  Or. 
316;   Odell  v.  Campbell,  9  Or.  298.    , 

Jurisdictional  defects  cannot  be  disregarded  as  not  af- 
fecting substantial  rights:  Johns  v.  Marion  Co.,  4  Or. 
46. 

Objections  to,  not  waived  by  answer  to  the  merits:  King 
and  Lownsdale  v.  Boyd,  4  Or.  326;  Goldsmith  v.  The 
Revenue  Cutter,  6  Or.  250;  Tolmie  v.  Dean,  1  W.  T.  46. 

Where  want  of  jurisdiction  appears,  it  is  the  duty  of  the 
court  at  any  stage, on  its  own  motion, to  dismiss:  Evans 
V.  Christian,  4  Or.  375;  McKay  v.  Freeman,  6  Or.  449; 
State  V.  McKinnon,  8  Or.  487;  Tolmie  v.  Dean,  1  W.  T. 
46. 

Error  does  not  render  a  judgment  void  on  collateral  at- 
tack: Dolph  V.  Barney,  5  Or.  192. 

Judgment  is  not  void,  unless  court  had  no  jurisdiction  of 
parties  or  subject-matter:  Nicklin  v.  Ilobin,  13  Or.  406. 

Where  court  has  jurisdiction  of  the  subject-matter,  volun- 
tary appearance  cures  defect  of  service,  and  gives  the 
court  jurisdiction  of  the  parties:  White  v.  Northwest 
Stage  Co.,  5  Or.  99. 

Nothing  short  of  clear  contradiction  in  judgment  roll  will 
overcome  recital  of  jurisdiction  in  judgment:  Ladd  v. 
Higley,  5  Or.  296. 

United  States  cannot  be  sued  in,  or  its  property  taken 
under  process  of,  state  court:  Goldsmith  v.  The  Revenue 
Cutter,  6  Or.  250. 

Objection  to  jurisdiction  is  not  waived  by  government  by 
pleading  to  the  merits:  Id, 


Jurisdiction.  351 

Jurisdiction  (continued). 

Court  of  general  jurisdiction  exercising  a  special  statutory- 
power  must  show  by  its  records  a  strict  compliance 
with  statute:  Northcut  v.  Lemery,  8  Or.  316;  Odell  v. 
Campbell,  9  Or.  298. 

Jurisdiction  is  not  presumed  from  recitals  in  decree  of 
due  service  by  publication,  where  the  record  shows  that 
sufficient  time  had  not  elapsed  after  filing  complaint: 
Id. 

Want  of  jurisdiction  appearing  on  the  face  of  the  record 
is  considered  on  appeal,  but  no  errors  not  specifically- 
assigned  in  the  notice  of  appeal  can  be  considered: 
State  V.  McKinnon,  8  Or.  487. 

Presumption  in  favor  of  judgment  of  a  court  of  general 
jurisdiction  is  confined  to  matters  within  the  scope  of 
its  general  jurisdiction,  and  docs  not  extend  to  statu- 
tory and  special  proceedings:  Odell  v.  Campbell,  9  Or. 
298. 

In  pleading  judgment  of  inferior  court,  so  much  of  the 
proceedings  must  be  stated  as  to  show  that  the  court 
had  acquired  jurisdiction:  Dick  v.  Wilson,  10  Or.  490. 

From  the  time  of  service,  court  has  jurisdiction,  and  sub- 
sequent proceedings,  though  erroneous,  are  not  void: 
Woodward  v.  Baker,  10  Or.  491. 

After  service,  judgment  by  default  without  allowing  de- 
fendant full  time  to  plead  cannot  be  collaterally  at- 
tacked: Id. 

Judgment,  though  erroneous,  is  valid  until  reversed  on 
appeal:  Nicklin  v.  IIobin,.13  Or.  406. 

Court  having  jurisdiction  to  render  a  judgment  for  costs, 
though  it  enters  an  erroneous  judgment,  appeal  and  not 
injunction  is  the  remedy  to  prevent  its  enforcement:  Id. 

Wan^of  jurisdiction,  and  failure  to  state  sufficient  facts, 
are  never  cured  except  by  supplying  the  defects:  Tol- 
mie  V.  Dean,  1  W.  T.  46. 

The  appellate  and  general  jurisdiction  of  the  courts  of 
Washington  Territory  under  the  Organic  Act:  Nickels 
V.  Grifiin,  1  W.  T.  374. 
2.   Supreme  Court. 

Jurisdiction  of  Supreme  Court  is  appellate  and  revisory- 
only:  Boon  V.  McClane,  2  Or.  331. 

Supreme  Court  cannot  review  an  order  partially  reraov- 


352  Jurisdiction. 

Jurisdiction  (continued). 

ing  a  cause  to  United  States  court:  Fields  v.  Lamb,  2 

Or.  340. 
Parties  cannot  waive  notice  of  appeal,  and  give  the  court 

jurisdiction:  Oliver  v.  Harvey,  5  Or.  360. 
Supreme   Court  gains  no  authority  for  review  after  the 

time  limited  for  taking  error  has  expired,  though  the 

parties  consent:  Stark  v.  Jenkins,  1  W.  T.  421. 
Supreme  Court  gains  jurisdiction  over  the  subject-matter 

by  precipe,  and  over  the  person  by  service  of  notice: 

Schwabacher  v.  Wells,  1  W.  T.  506. 
Unless  it  satisfactorily  appears  that  the  transcript  con- 
tains all  the  evidence,  Supreme  Court  has  no  jurisdic- 
tion: McGown  V.  Petit,  1  W.  T.  514. 
Service  of  notice  of  appeal  on  the  clerk  of  the  District 

Court  is  essential  to  give  Supreme  Court  jurisdiction: 

BUnn  V.  Crosby,  2  W.  T.  109. 
"Without  joinder  in  the  appeal,  appearance,  or  service  of 

notice,  the  Supreme  Court  gains  no  jurisdiction:  Parker 

V.  Denny,  2  W.  T.  360. 
3.  Circuit  and  District  Courts. 

Circuit  Court  has  supervisory  control  of  inferior  tribunals 

by  certiorari:  Thompson  v.  Multnomah  Co.,  2  Or.  34. 
The  Circuit  Court  has  power,  under  the  acts  of  Congress, 

to  make  an  order  removing  a  cause  to  the  United  States 

courts:  Fields  v.  Lamb,  2  Or.  340. 
Multnomah  Circuit  Court  refused  to  direct  party  to  appear 

in  ^Marion  County,  and  satisfy  decree  there:  Provost  v. 

Millard,  3  Or.  370. 
Circuit  Court  has  concurrent  jurisdiction  with  justice  in 

assault  and  battery:  State  v.  Sly,  4  Or.  277. 
By  consent,  a  jury  may  be  waived,  and  trial  before  the 

court  had   in  vacation,   upon   testimony   taken  before 

referee:  Roy  v.  Ilorsley,  6  Or.  382. 
Circuit  Court  has  jurisdiction  of  both  defendants,  where 

both  appear  and  defend,  on  appeal  from  justice,  though 

judgment  below  was  against  one,  and  he  alone  appealed: 

Cauthorn  v.  King,  8  Or.  138. 
Circuit  Court  will  exercise  jurisdiction  to  try  the  right  to 

office  in  a  city,  though  a  municipal  board  has  been 

given  jurisdictioii  by  charter:  State  v.  McKinnon,  8  Or. 

4'J3. 


Jurisdiction.  353 

Jurisdiction  (continued). 

But  otherwise  where  the  charter  expressly  confers  exclu- 
sive and  final  jurisdiction  on  such  board:  Simon  v. 
Portland  Cora.  Council,  9  Or.  437. 

Circuit  Court  cannot  entertain  action  on  bond  of  admin- 
istrator removed  for  misconduct,  until  a  final  settlement 
is  had  by  the  County  Court:  Hamlin  v.  Kinney,  2  Or. 
01;  Adams  v.  Petrain,  11  Or.  304. 

Where  no  course  of  proceeding  is  provided  by  the  Code, 
the  Circuit  Court  will  have  jurisdiction,  and  may  adopt 
a  remedy  suitable  and  conformable  to  the  spirit  of  the 
Code:  Aiken  v.  Aiken,  12  Or.  203. 

Circuit  Court  has,  and  justice  has  not,  power  to  revive  a 
justice's  judgment  that  has  been  docketed  in  the  Cir- 
cuit Court:  Glaze  v.  Lewis,  12  Or.  347. 
Circuit  Court,  in  exercising  statutory  power,  under  act 
of  1878  (c.  28,  Hill's  A.  L.)  over  insolvents'  estates,  is- 
a  limited  and  inferior  tribunal:  In  re  Goldsmith,  12  Or. 
414. 

Circuit  Court  acquires  no  jurisdiction  where,  on  appeal 
from  justice,  the  respondent  takes  up  and  files  the 
transcript:  Steel  v.  Ilees,  13  Or.  428. 

District  Court  has  no  jurisdiction,  even  with  consent  of 
parties,  to  enter,  as  of  a  past  term,  a  decree  rendered  in 
vacation:  Puget  Sound  Ag'l  Co.  v.  Pierce  Co.,  1  W.  T. 
75. 

District  Court  has  no  power  to  try  a  case  on  issue  of  fact, 
without  a  jury,  where  jury  trial  was  not  waived:  John-- 
son  V.  Goodtime,  1  W.  T.  484. 

Actions  under  sections  48,  Practice  Act  of  1877,  must  be- 
brought  in  court  in  the  county  of  district  in  which  the 
subject  of  the  action  lies,  and  the  jurisdiction  of  such 
court  is  exclusive:  Wood  v.  Mastick,  2  W.  T.  G4. 
4.   County  Court. 

County  Court  has  no  power  to  revise  assessments  for  tax- 
ation, but  clerk  and  assessor  have:  Rhea  v.  Umatilla 
County,  2  Or.  298;  Darragh  v.  Bird,  3  Or.  246. 

Has  no  authority  to  partition  and  determine  rights  of 
parties  to  realty  of  estates:  Hanner  v.  Silver,  2  Or.  336. 

County  Court  is  a  court  of  superior  jurisdiction  in  probate 

-  matters:  Russell  v.  Lewis,  3  Or.  380;  Tustin  v.  Gaunt,. 
4  Or.  305;  Mohastes  v.  Catlin,  6  Or.  119. 

Ok.  Dig.— 23 


354  Jurisdiction. 

Jurisdiction  (continued). 

County  Court  is  a  court  of  limited  jurisdiction  in  laying 
out  roads:  Johns  v.  Marion  County,  4  Or.  46;  State  v. 
Officer,  4  Or.  180;  C.  &  G.  Road  Co.  v.  Douglas  County, 
5  Or.  280. 

Jurisdiction  of  County  Courts  in  laying  out  roads  may  be 
questioned  by  writ  of  review:  Id. 

County  Court,  in  appointing  guardian  for  minors  and 
lunatics,  is  court  of  superior  jurisdiction:  Monastes  v. 
Catlin,  6  Or.  119. 

Such  jurisdiction  pertains  to  Probate  Courts  within  article 
7,  section  12,  of  the  constitution:  Id. 

County  Court  has  exclusive  jurisdiction  to  take  proof  of 
wills,  and  its  judgment  is  conclusive  until  impeached: 
Hubbard  v.  Hubbard,  7  Or.  42. 

The  whole  record,  and  not  the  petition  alone,  will  be  ex- 
amined to  ascertain  whether  a  court  had  power  to  ad- 
mit a  will  to  probate:  Moore  v.  Willamette  T.  &  L.  Co., 
7  Or.  359. 

County  Court  may  assess  damage  for  taking  materials  for 
repairing  road  from  private  land:  Kendall  v.  Post,  8 
Or.  141. 

lias  exclusive  jurisdiction  in  matters  pertaining  to  pass- 
ing title  to  personalty  of  deceased  persons:  Winkle  v. 
Winkle,  8  Or.  193. 

Jurisdiction  of  County  Court  to  sell  realty  on  administra- 
tion of  estate  depends  upon  the  sufficiency  of  the  peti- 
tion: Wright  and  Jones  v.  Edwards,  10  Or.  298. 

The  petition  must  strictly  pursue  the  statute,  and  juris- 
diction must  appear  affirmatively  therefrom:  Id. 

County  Court  has  exclusive  jurisdiction  in  the  first  in- 
stance to  grant  or  revoke  letters  of  administration: 
Ramp  v.  McDaniel,  12  Or.  108. 

Its  probate  powers  are  not  created  by  statute:  Id. 

5.    J L' STICK    OF    THE    PeACE. 

Statute  increasing  justice's  jurisdiction  to  $250  is  consti- 
tutional: Noland  v.  Costella,  2  Or.  57. 

A  city  recorder  may  be  given  ex  officio  jurisdiction  as  jus- 
tice of  the  peace  within  city  limits:  Ryan  v.  Harris,  2 
Or.  175;  Craig  v.  Mosier,  2  Or.  323. 

Jurisdiction  of  committing  magistr^ite  may  be  inquired 
into  on  return  of  writ  of  habeas  corpus:  Norman  v. 
Zicber,  3  Or.  197. 


Jurisdiction.  355 

Jurisdiction  (continued). 

Of  justice,  continues  after  being  once  obtained  over  sub- 
ject-matter, until  final  disposition:  Knapp  v.  King,  6 
Or.  245. 

Having  rendered  judgment  void  for  want  of  proper  service, 
justice  may  issue  alias  summons:  Id. 

Statute  creating  offense,  and  affixing  penalty  to  be  recov- 
ered by  action  before  justice,  confers  exclusive  jurisdic- 
tion on  Justices'  Courts:  Multnomah  County  v.  Knott, 
6  Or.  279. 

Justice  has  jurisdiction  to  exclusion  of  Circuit  Court  in 
forcible  entry  and  detainer:  Thompson  v.  Wolf,  6  Or. 

308. 
Justice  has  jurisdiction  when  service  of  summons  is  had 
in  the  county,  although  not  in  his  precinct:  Taylor  v. 
Jenkins,  11  Or.  274. 
When  the  title  to  real  property  comes  in  question  in  Jus- 
tice's Court,  jurisdiction  is  ousted:   Sweek  v.  Galbreath, 
11  Or.  516;  Aikin  v.  Aikin,  12  Or.  203. 
The  test  of  the  jurisdiction  of  a  justice  of  the  peace  is  the 
sum  recovered,  not  the  sum  claimed:  Bagley  v.  Car- 
penter, 2  W.  T.  19,  overruling  Ebey  v.  Engle  and  Hill, 
1  W.  T.  72. 
6.   Other  Tribunals  and  Officers. 

Where  an  officer  is  known  and  recognized  as  having  au- 
thority, the  court  will  presume  he  acted  within  his  juris- 
diction, where  the  verification  of  a  pleading  was  taken 
before  him:  Dennison  v.  Story,  1  Or.  272. 
Jurisdiction  of  person  administering  oath  must  appear  in 

his  certificate:  Blanchard  v.  Bennett,  1  Or.  328. 
Police  judge  may  be  given  powers  of  justice  within  the 
city,  but  cannot  be  limited  to  criminal  cases;  State  v. 
Wiley,  4  Or.  184. 
His  jurisdiction  is  identical  with  justice  in  civil  as  well 

as  in  criminal  cases:  Id. 
Jurisdiction  of  police  judge  of  the  city  of  Portland:  Id.; 

Portland  v.  Denny,  5  Or.  160. 
Territorial  Probate  Court  was  a  court  of  inferior  jurisdic- 
tion: Farley  v.  Parker,  6  Or.  105. 
7.  -Particular  Cases. 

Surveyor-general  has,  and  courts  have  not,  power  to  settle 
boundaries  of  public  lands:  Woodsides  v.  Rickey,  1  Or.- 
108;  Lee  v.  Simonds,  1  Or.  158. 


356  Jurisdiction. 

Jurisdiction  (continued). 

Where  settler  is  in  possession,  courts  can  protect  his 
claim  from  invasion:  Id.;  Colwell  v.  Smith,  1  W.  T.  92 

In  such  case  the  court  will  exercise  jurisdiction  without 
entertaining  the  objection  that  the  claim  under  the 
Donation  Act  is  not  in  "compact"  form:  Lee  v.  Si- 
monds,  1  Or.  158. 

Courts  will  not  entertain  proceedings  arising  out  of  facts 
to  be  determined  by  land  department  of  the  United 
States:  Moore  v.  Fields,  1  Or.  317;  Colwell  v.  Smith, 
1  W.  T.  92. 

Petition  of  householders  and  legal  notice  are  jurisdictional 
facts  in  laying  out  highway:  Thompson  v.  Multnomah 
County,  2  Or.  34;  Johns  v.  Marion  County,  4  Or.  46. 

Larceny  may  be  punished  by  the  courts  of  any  county, 
where  the  goods  are  carried  by  the  thief:  State  v.  John- 
son, 2  Or.  115. 

State  courts  may  be  given  authority  to  punish  offense 
of  having  counterfeiting  tools  in  possession:  State  v. 
Brown,  2  Or.  221. 

Jurisdictional  facts  need  not  be  recited  in  warrant  for 
arrest  in  civil  cases:  Norman  v.  Zieber,  3  Or.  197. 

Jurisdiction  on  arrest,  in  civil  cases,  depends  on  affidavit, 
and,  if  absent  or  insufficient,  arrest  is  void:  Id. 

Nptice  of  contest  of  election,  jurisdictional:  IMyers  v. 
Warner,  3  Or.  212. 

Orders  of  sale  of  property  in  probate  proceeding,  reciting 
jurisdiction,  are  presumed  true:  Russell  v.  Lewis,  3  Or. 
380. 

Terminal  points  must  be  described  with  certainty  in 
petition  for  county  road,  or  no  jurisdiction:  Johns  v. 
Marion  County,  4  Or.  46. 

Locality  of  lost  stake  may  be  ascertained  as  well  in  law 
as  in  equity:  Lewis  v.  Lewis,  4  Or.  177. 

Recital  in  record  of  posting  of  notices  to  the  satisfaction 
of  court  in  opening  road  insufficient,  and  the  record 
must  show  the  facts:  State  v.  Officer,  4  Or.  180. 

Judgment  roll  showing  want  of  jurisdiction,  proper  evi- 
dence to  dispute  administrator's  sale:  Gilmore  v.  Tay- 
lor, 5  Or.  89. 

On  application  for  leave  to  issue  execution  on  a  dormant 
judgment,  the  sarne  presumption  as  upon  collateral 
attack:  Strong  v.  Barnhart,  6  Qr.  93. 


Jurisdiction.  357 

Jurisdiction  (continued). 

Notice  of  intention  of  city  to  improve  street  is  jurisdic- 
tional, and,  in  its  absence  from  the  record,  the  presump- 
tiou  of  regularity  provided  by  the  charter  does  not 
exist:  Van  Sant  v.  Portland,  G  Or.  395. 

Judge  in  vacation  has  no  jurisdiction  to  try  contempt  in 
disobeying  order  of  the  court  in  term:  State  v.  McKin- 
non,  8  Or.  487. 

Jurisdiction  in  habeas  corpus  is  not  ousted  by  admission 
of  prisoner  to  bail  before  the  return  to  the  writ  is  made: 
Pomeroy  v.  Lappeus,  9  Or.  363. 

Affidavit  is  the  foundation  of  jurisdiction  in  making  order 
for  immediate  delivery  in  replevin:  Carlon  v.  Dixon, 

12  Or.  144. 

Exercise  of  power  by  a  city,  to  sell  real  property  for 
delinquent  tax,  is  not  an  adjudication  or  the  exercise 
of  jurisdiction  in  a  judicial  sense:  Dowell  v.  Portland, 

13  Or.  248. 

In  laying  out  streets  by  a  city,  all  the  steps  provided  by 
charter  are  jurisdictional,  and  must  appear  regularly 
taken  by  the  record:  N.  P.  T.  Co.  v.  Portland,  14  Or.  24. 

This,  though  charter  provides  for  a  presumption  of  regu- 
larity in  such  matters:  Id. 

Guardians'  sales,  where  the  record  shows  no  want  of  juris- 
diction, are  not  open  to  collateral  attack,  if  the  plead- 
ings do  not  put  the  jurisdiction  in  issue:  Walker  v. 
Goldsmith,  14  Or.  125^ 

Homicide  on  Indian  reservation  is  within  federal  juris- 
diction, and  rules  of  common  law  govern:  Shapoon- 
mash  V.  United  States,  1  W.  T.  188. 

Marine  torts,  committed  on  tide-waters,  within  the  boun- 
daries of  a  county,  are  within  the  jurisdiction  of  the 
^nited  States:  Smith  v.  United  States,  1  W.  T.  262. 

An  offense  so  committed  is  also  within  the  jurisdiction  nf 
the  territorial  court:  Id. 

Territorial  courts  exercise  the  combined  jurisdiction  of  the 
District  and  Circuit  Courts  of  the  United  States:  Id.; 
Stevens  v.  Baker,  1  W.  T.  315. 

Territorial  courts  have  jurisdiction  of  a  murder  committed 
on  San  Juan  Island,  pending  the  settlement  of  the 
United  States  boundary,  when  the  offense  was  com- 
mitted, while  the  convention  for  joint  occupancy  was  in 


358  Jurisdiction. 

Jurisdiction  (continued). 

force:  Watts  v.  United  States,  1  W.  T.  288;  Watts  v. 
Territory,  1  W.  T.  409. 
Venue  is  jurisdictional  in  replevin,  but  if  the  sheriff's 
return  shows  the  property  is  within  the  court's  jurisdic- 
tion, the  omission  in  the  pleading  is  corrected:  Stiles  v. 
James,  2  W.  T.  194. 
Transcript  of  record  of  a  Probate  Court  in  Oregon,  show- 
ing that  that  court  had  assumed  jurisdiction  of  certain 
notes,  is  privia  facie  evidence  that  they  were  in  Oregon 
at  the  time  and  within  the  jurisdiction  of  such  court: 
McCoy  V.  Ayres,  2  W.  T.  203. 

Jury  and  Jury  Trial.     See   Criminal   Law;   Evidence; 
Practice. 

1.  Grand  Jury. 

2.  Eight  to  Jury  Trial. 

3.  Summoning  and  Impaneling. 

4.  Relations  of  Court  and  Jury. 

5.  Instructions. 

6.  Conduct  and  Deliberation. 

7.  Verdict. 
1.   Grand  Jury. 

Presumed  duly  sworn  as  to  qualifications  to  serve,  from 
the  language  of  the  record:  O'Kelly  v.  Territory,  1  Or. 
51. 

Challenges  to  panel  are  abolished  in  Oregon. by  statute: 
State  V.  Fitzhugh,  2  Or.  227. 

Objection  that  an  attorney  employed  to  as&ist  the  prose- 
cution was  present  before  the  grand  jury  when  in- 
dictment was  found  is  no  ground  for  reversal  after 
judgment:  State  v.  Whitney,  7  Or.  386;  State  v.  Jus- 
tus, 11  Or.  178. 

Motion  to  quash  the  indictment  for  illegality  of  grand 
jury,  not  considered  on  appeal,  where  the  facts  are  not 
discovered  from  the  record:  State  v.  Anderson,  10  Or. 
448. 

Fact  that  defendant  appeared  as  a  witness  before  the 
grand  jury,  no  ground  for  reversal:  Id. 

Under  the  constitution,  the  grand  jury  must  be  drawn 
from  the  jurors  in  attendance  at  a  term  of  court;  an 
act  providing  for  drawing  them  before  the  term  is  void: 
State  v.  Lawrence,  12  Or.  297. 


Jury  and  Jury  Trial.  359 

Jury  and  Jury  Trial  (continued). 

Indictment  found  by  such  grand  jury  is  invalid,  and  judg- 
ment of  conviction  thereon  bad:  Id. 

Where  the  record  shows  the  impaneling  of  grand  jury 
void,  court  should  stay  the  proceedings  as  soon  as  its 
attention  is  directed  thereto:  Yelm  Jim  y.  Territory,  1 
W.  T.  63;  Clarke  v.  Territory,  1  W.  T.  68. 

Irregularities  having  occurred  in  selection  of  grand  jury, 
the  court  is  authorized  to  discharge  same,  and  have 
sheriff  summon  sixteen  qualified  grand  jurors  from 
the  by-standers:  Id. 

Where  the  grand  jury  have  been  finally  discharged,  and 
it  is  made  to  appear  to  the  court  that  the  public  inter- 
ests would  be  promoted  by  resummoning  them,  the 
court  may  order  sheriff  to  fill  the  panel  from  the  by- 
standers, if  all  the  original  jurors  cannot  be  found: 
Watts  v.  Territory,  1  W.  T.  409. 

Where  the  records  show  that  the  grand  jury  appeared  in 
open  court,  and  their  foreman,  in  their  presence,  pre- 
sented a  true  bill  properly  indorsed,  it  sufficiently  ap- 
pears that  the  indictment  was  found  by  concurrence  of 
at  least  twelve  jurors:  Id. 

Married  Avomen  residing  with  their  husbands  are  compe- 
tent grand  jurors:  Rosencrantz  v.  Territory,  2  W.  T. 
267;  Schilling  v.  Territory,  2  W.  T.  283;  Walker  v. 
Territory,  2  W.  T.  286. 

The  Code  of  1881,  prescribing  the  qualifications  of  grand 
jurors,  included,  besides  persons  then  qualified,  those 
wl'O  should  afterwards  become  possessed  of  the  qualifi- 
cations prescribed:  Id. 

Chapter  183  of  Code  of  1881  removed  the  common-law 
disabilities  of  a  wife  as  a  member  of  the  family,  and 
husband  and  wife  are  jointly  the  head  of  llie  family: 
^d. 

The  constitution  of  the  grand  jury  is  not   impaired  by 
making  married  women  members  thereof:  Id. 
2.    Right  to  Jury  Trial. 

By  consent,  jury  tdal  may  be  waived,  and  a  referee  ap- 
pointed to  take  the  testimony  to  be  used  on  the  trial 

'  before  the  court  at  chambers:  Roy  v.  Horsley,  6  Or. 
382. 

Reference,  without  consent,  under  section  219,  Civil  Code, 


360  '  Jury  and  Jury  Trial. 

Jui^y  and  Jury  Trial  (continued). 

not  unconstitutional,  in  cases  which  involve  the  exam- 
ination of  long  accounts:  Tribou  v.  Strowbridge,  7  Or. 
15G. 

Nor  is  section  29,  chapter  50,  Miscellaneous  Laws  (sec. 
4093,  Hill's  A.  L.),  concerning  assessment  by  County- 
Court  of  damages  for  taking  of  materials  for  repair  of 
roads  from  private  lands,  unconstitutional:  Kendall  v. 
Post,  8  Or.  141. 

The  right,  guaranteed  by  constitution,  is  the  common-law 
trial  by  jur}^  and  trial  for  violating  city  ordinance  i.i 
not  within  the  provisions:  Wong  v.  Astoria,  13  Or.  538. 

No  deprivation  of  the  right  that  party  cannot  obtain  jury 
in  an  inferior  court,  if  provision  is  made  for  jury  trial 
on  appeal:  Id. 

Parties  cannot  claim  right  to  jury  trial  in  divorce  cases: 
Madison  v.  Madison,  1  W.  T.  60. 

There  being  no  Avaiver  of  jury  trial,  the  court  has  no  au- 
thority to  try  an  action  in  which  an  issue  of  fact  is 
made:  Johnson  v.  Goodtime,  1  W.  T.  484, 

No  right  of  jury  trial  in  admiralty  in  a  libel  case:  Phelps 
V.  Steamship  City  of  Panama,  1  W.  T.  518. 

Supplemental  proceedings  under  the  Code  serve  the  end 
of  a  creditor's  bill,  and  therefore  are  to  be  heard  and 
determined  by  the  court  without  jury:  Murne  v.  Schwa- 
bacher  Bros.  &  Co.,  2  W.  T.  130. 
3.   Summoning  and  Impaneling. 

Selection  of  jury  for  special  term  under  statute:  O'Kelly 
V.  Territory,  1  Or.  51. 

Presumption  that  jury  was  regularly  impaneled:  Id. 

Celling  of  jury  from  list,  instead  of  drawing  from  box,  not 
error  sufiicient  to  reverse,  where  it  appears  that  all  the 
regular  panel  was  so  called  and  exhausted:  Hart  v. 
Territory,  1  Or.  122. 

After  discharge  of  regular  panel,  court  cannot  summon 
new  jury  against  the  will  of  either  party:  Mosseau  v. 
Vecder,  2  Or.  113. 

After  a  jury  had  been  challenged  peremptorily,  no  error 
to  allow  challenge  to  be  withdrawn  before  next  juror 
called:  Garrison  v.  Portland,  2  Or.  123. 

Resident  and  tax-payer  in  city  not  competent  juror  in 
damage  case  against  city:  Id. 


Jury  and  Jury  Trial,  361 

Jury  and  Jury  Trial  (continued). 

Nor  in  action  to  lay  out  street  and  assess  damages  and 
benefits:  Portland  v.  Kamm,  5  Or.  3G2. 

Whether  the  sustaining  or  overruling  challenge  for  actual 
bias  is  reviewable  on  appeal,  quxre;  certainly  not  un- 
less all  the  testimony  is  in  the  record:  State  v.  Brown, 
7  Or.  186. 

Who  is  a  by-stander:  Id. 

Objection  to  juror  as  not  a  citizen  is  waived  by  failing  to 
challenge  at  proper  time:  State  v.  McDonald,  8  Or.  113. 

Challenge  for  actual  bias  cannot  be  considered  on  appeal, 
unless  bill  of  exceptions  shows  all  the  evidence  adduced: 
State  V.  Tom,  8  Or.  177;  Hay  den  v.  Long,  8  Or.  244; 
McAllister  v.  Territory,  1  W\  T.  360. 

Objection  that  a  juror  is  drawn  from  a  particular  panel  is 
an  objection  to  the  panel:  State  v.  Dale,  8  Or.  229. 

Where  a  full  panel  is  not  in  attendance,  and  more  than 
enough  to  fill  the  panel  are  summoned,  the  objection 
should  be  made  that  a  particular  juror  is  not  properly 
summoned:  Id. 

Challenges  to  the  panel  have  been  abolished:  State  v. 
Fitzhugh,  2  Or.  227;  State  v.  Dale,  8  Or.  229. 

Omission  of  justice  to  swear  jury  waived  by  proceeding 
to  trial  and  judgment  without  objection:  Griffin  v.  Pit- 
man, 8  Or.  342. 

That  a  juror  had  once  been  convicted  of  crime  is  waived 
by  not  challenging  at  proper  time:  State  v.  Powers,  10 
Or.  145. 

Actual  bias  is  to  be  determined  by  the  court  in  the  exer- 
cise of  a  sound  discretion:  State  v.  Saunders,  14  Or.  300. 
Reading  newspaper  account,   or  general  rumor,  though 
leaving  juror  with  an  opinion  such  that  it  would  re- 
quire evidence  to  remove,  does  not  necessarily  disqual- 
ify:  Id. 
The  act  of  the  legislature    assigning  Pierce  County  to 
the  Second  Judicial  District,  from  which  the  juror  is 
drawn,  does  not  divest  the  prisoner  of  any  rights:   Les- 
chi  V.  Territory,  1  W.  T.  13. 
Such   enlargement  of  venue   is  but  an   enlargement  of 

Pierce  County:  Id. 
Record  showing  the  jury  was  "duly  sworn"  shows  that 
the  proper  oath  was  administered:  Id. 


362  Jury  and  Jury  Trial. 

Jury  and  Jury  Trial  (continued). 

Objection  to  the  jury  is  waived  if  not  taken  at  the  time 
of  impaneling  the  jury:  Clarke  v.  Territory,  1  W.  T.  68. 

Juror  absent  from  the  territory  for  two  years,  with  fixed 
intention  of  returning,  is  a  resident,  and  qualified:  Id, 

The  fact  that  he  voted  in  another  state  would  not  estab- 
lish his  residence  out  of  the  territory  against  his  sworn 
statement  of  residence  and  intention:  Id. 

In  case  of  a  subdistrict  composed  of  more  than  one 
county,  the  statute  requires,  upon  proper  motion  and 
affidavit,  the  exclusion  of  jurors  from  the  particular 
county:   McAllister  v.  Territory,  1  W.  T.  360. 

Adding  the  words,  "  and  the  law  as  given  by  the  court,"  to 
the  statutory  oath,  is  not  error,  since  the  jury  is  bound 
to  accept  the  law  as  given  by  the  court:  Hartigan  v. 
Territory,  1  W.  T.  447;  Leonard, v.  Territory,  2  W.  T. 
381. 

Panel  of  petit  jury  having  been  discharged,  court  is  au- 
thorized to  summon  a  jury  to  try  the  cause:  Thomp- 
son V.  Territory,  1  W.  T.  547. 

Jury  may  be  impaneled  after  the  first  three  weeks  of  the 
term,  and  the  statute  providing  that  all  jury  trials  shall 
be  within  the  first  three  weeks  of  the  term  is  repealed: 
Id. 

The  form  of  oath  in  this  case  did  not  differ  materially 
from   that   prescribed    by  the  statute,   but.  the  better 
practice  is  to  follow  the  form.ula  adopted  by  the  legis- 
lature:  Leonard  v.  Territory,  2  W.  T.  381. 
4.    Relation  of  Court  and  Jury. 

Intention  of  maker  of  a  writing  is  a  question  for  the 
court;  if  the  writing  is  a  part  of  a  transaction  consist- 
ing of  extrinsic  facts,  the  whole  evidence  is  for  the  jury: 
Winter  and  Lattimer  v.  Norton,  1  Or.  42. 

Whenever  there  is  any  evidence  tending  to  prove  a  fact, 
the  jury  must  pass  upon  it;  but  if  there  is  no  evidence 
tending  to  prove  the  fact,  the  court  may  so  charge: 
Latshaw  v.  Territory,  1  Or.  140;  State  v.  Garrand,  5 
Or.  216;  State  v.  Whitney,  3  Or.  386;  Briscoe  v.  Jones, 
10  Or.  63;  Smith  v.  United  States,  1  W.  T.  262. 

Reasonableness  of  appearances,  to  justify  homicide  on 
ground  of  self-defense,  is  a  question  for  jury:  Goodall 
V.  State,  1  Or.  333. 


Jury  axd  Jury  Trial.  363 

Jury  and  Jury  Trial  (continued). 

Issues  of  fraud  and  mismanagement  of  directors  of  corpo- 
ration submitted  to  jury  in  an  equity  suit:  Hedges  v. 
Paquett,  3  Or.  77. 

Necessity  for  mooring  a  boom  to  the  bank  of  private  stream, 
in  an  action  for  trespass,  is  a  question  for  the  jury: 
Weise  v.  Smith,  3  Or.  445. 

Question  whether  a  sale  was  fraudulent  when  personal 
property  was  left  with  vendor  is  a  question  for  jury: 
Moore  v.  Floyd,  4  Or.  102;  McCully  v.  Swackhamer,  6 
Or.  438. 

Question  for  jury  whether  contract  for  delivery  of  sheep 
had  been  complied  with  under  the  circumstances: 
Southwell  V.  Breezley,  5  Or.  143. 

Probable  cause  in  malicious  prosecution;  province  of 
court  and  jury:  Glaze  v.  Whitley,  5  Or.  104. 

Whether  statements  made  by  the  assured  to  life  insurance 
company,  contained  in  his  written  application  for  insur- 
ance, are  warranties  or  representations  is  to  be  deter- 
mined by  the  court,  and  not  left  to  the  jury:  Buford  v. 
N.  Y.  Life  Ins.  Co.,  5  Or.  334. 

Presumption  of  life  or  innocence  affecting  legality  of  a 
marriage,  duty  of  court  and  jury:  Murray  v  Murray, 
G  Or.  17. 

Construction  of  a  writing  as  evidence  of  an  agreement  is 
for  the  court,  not  the  jury:  State  v.  Moy  Looke,  7  Or. 
54;  Tolmie  v.  Dean,  1  W.  T.  46. 

In  equity  cases,  when  issues  may  be  submitted  to  a  jury, 
and  the  effect  of  the  verdict:  De  Lashmutt  v.  Everson, 
7  Or.  212;  Swegle  v.  Wells,  7  Or.  222. 

The  degree  of  the  crime  as  well  as  the  fact  of  guilt  must 
be  left  to  the  jury:  State  v.  Grant,  7  Or.  414. 

Jury  may  judge  of  the  genuineness  of  a  pretended  copy 
"5f  a  lost  instrument,  when  the  making  of  the  instru- 
ment is  a  fact  in  issue:  Rosendorf  v.  Ilirschberg,  8  Or. 
240. 

Construction  and  effect  of  deeds  in  evidence  must  be  de- 
termined by  the  court:  Johnson  v.  Shively,  9  Or.  333. 

Privileges  and  duty  of  attorneys  in  addressing  the  jury; 
control  of  the  court:  Tenny  v.  Mulvaney,  8  Or.  513; 
State  V.  Lee  Ping  Bow,  10  Or.  27;  Long  and  Spaur  v. 
Lander,  10  Or.  175;  State  v.  Anderson,  10  Or.  448; 
State  V.  Abrams.  11  Or.  169. 


864  Jury  and  Jury  Trial. 

Jury  and  Jury  Trial  (continued). 

Relation  and  province  of  court  and  jury  in  determining 
question  of  negligence:  Walsh  v.  Oregon  R'y  &  Nav. 
Co.,  10  Or.  250. 

Modification  of  contract  of  carriage  by  express  company, 
by  changing  directions  indorsed  on  package,  a  question 
for  the  jury:  Bennett  v.  Northern  Pacific  Express  Co., 
12  Or.  49. 

Jury  must  determine  the  facts,  and  the  court  cannot  as- 
sume as  proved  facts  that  should  be  left  to  the  jury: 
State  V.  Grant,  7  Or.  414;  State  v.  Mackey,  12  Or.  154; 
Yarnberg  v.  Watson,  13  Or.  11. 

Question  whether  an  incompleted  boat  is  a  "  vessel "  is 
for  the  jury,  under  proper  instruction  and  definition  by 
the  court:  Yarnberg  v.  Watson,  13  Or.  11. 

"Frequenting"  an  ojjiura  den  would  require  more  than 
one  visit;  how  many,  it  seems,  would  be  a  mixed  ques- 
tion of  law  and  fact  for  the  jury:  State  v.  Ah  Sam,  14 
Or.  347. 

The  existence  of  an  agent's  authority  is  a  question  of  fact; 
what  he  may  do  by  virtue  thereof  is  a  question  of  law: 
Glenn  v.  Savage,  14  Or.  567. 

Whether  an  agent  is  duly  authorized  is  not  a  question  for 
the  jury:  Id. 

The  existence  and  terms  of  a  treaty  should  not  be  sub- 
mitted to  the  belief  of  the  jury:  Roberts  v.  Lucas,  1 
W.  T.  205. 
5.   Instructions. 

No  error  to  refuse  to  instruct  on  a  point  to  which  there  is 
no  evidence:  Latshaw  v.  Territory,  1  Or.  140;  State  v. 
Glass,  5  Or.  73;  Glaze  v.  Whitley,  5  Or.  164;  State  v. 
Brown,  7  Or.  186;  Doctor  Jack  v.  Territory,  2  W.  T. 
131. 

Jury  instructed  that  plaintiff  was  entitled  to  his  whole 
damages,  or  nothing:  Heath  v.  Glisan,  3  Or.  64. 

Not  to  compromise  against  convictions  of  truth:  Boyd- 
ston  V.  Giltner,  3  Or.  118. 

Jurors  are  not  at  liberty  to  disregard  the  law  under  be- 
lief that  they  thus  can  do  justice:  Davis  v.  Mason,  3 
Or.  154. 

Right  to  have  instructions  given  may  be  limited  by  rea- 
sonable rules  of  court:  Carney  v.  Barrett,  4  Or.  17l. 


Jury  and  Jury  Trial.  365 

Jury  and  Jury  Trial  (continued). 

In  what  manner  court  may  instruct  jury  to  bring  in  ver- 
dict in  certain  form:  Farley  v.  Parker  and  Sutherland, 
4  Or.  269. 

Abstract  propositions  of  law,  or  hypothetical  case  on 
which  the  jury  will  not  have  to  pass,  need  not  be  given, 
and  refusal  no  error:  Shattuck  v.  Smith,  5  Or.  125; 
Espy  V.  Fenton,  5  Or.  423;  State  v.  Brown,  7  Or.  186; 
Rohr  V.  Isaacs,  8  Or.  451;  Schmieg  v.  Wold,  1  W.  T. 
472. 

Court  is  justified  in  instructing  the  jury  that  there  is  no 
evidence  on  a  certain  point:  Latshaw  v.  Territory,  1 
Or.  140;  State  v.  Garrand,  5  Or.  216;  State  v.  Whitney, 
7  Or.  386;  Briscoe  v.  Jones,  10  Or.  63;  Smith  v.  United 
States,  1  W.  T.  262. 

Permitting  jury  to  take  written  instructions  to  jury-room, 
condemned  as  bad  practice:  Smith  v.  Lownsdale,  6 
Or.  78. 

But  in  Washington  Territory  it  is  not  error  to  allow  them 
to  do  so:  Edwards  v.  Territory,  1  W.  T.  195. 

Court  may  append  explanation  in  writing  to  instruction 
requested:  Knapp  v.  King,  6  Or.  243. 

Error  to  submit  a  question  of  fact  to  which  there  is  no 
evidence:  Morris  v.  Perkins,  6  Or.  350;  Hayden  v. 
Long,  8  Or.  244;  Marx  v.  Schwartz,  14  Or.  177;  Breon 
V.  Henkle,'  14  Or.  494;  Glenn  v.  Savage,  14  Or.  567. 

Refusal  to  give  special  instruction  substantially  included 
in  general  charge  given,  no  error:  State  v.  Brown,  7 
Or.  186.    . 

Not  error  to  omit  to  instruct  on  question  pertinent,  with- 
out the  attention  of  the  court  is  called  to  the  matter: 
Page  V.  Finley,  8  Or.  45;  Hurst  v.  Burnside,  12  Or.  520. 

Refusal  to  give  instructions  asked  not  presumed  error; 
record  must  show  them  to  have  been  proper;  no  error 
to  refuse,  when  not  pertinent:  Richards  v.  Fanning,  5 
Or.  356;  Rosendorf  v.  liirschberg,  8  Or.  240;  City  of 
Seattle  v.  Buzby,  2  W.  T.  25. 

Instruction  upon  abstract  questions  not  relevant,  though 
erroneous,  not  ground  for  reversal  where  the  record 
justifies  the  inference  that  no  injury  was  occasioned: 
Salmon  v.  Olds  and  King,  9  Or.  488;  Yelm  Jim  v. 
Territory,  1  W.  T.  63. 


366  Jury  and  Jury  Trial.   • 

Jury  and  Jury  Trial  (continued). 

Otherwise,  where  it  manifestly  tends  to  mislead  the  jury 
as  to  the  real  issues:  Willis  v.  Or.  R'y  &  Nav.  Co.,  11 
Or.  257;  Breon  v.  Henkle,  14  Or.  494. 

An  erroneous  instruction  without  prejudice  is  no  ground 
for  reversal:  Salmon  v.  Olds  and  King,  9  Or.  488; 
Briscoe  v.  Jones,  10  Or.  63;  Strong  v.  Kamm,  13  Or. 
172;  Brown  Bros.  &  Co.  v.  Forest,  1  W.  T.  201. 

Where  there  are  several  distinct  issues,  it  is  error  to  in- 
struct to  find  a  verdict  in  favor  of  one  party  if  the  jury 
determine  a  particular  one  of  the  issues  in  his  favor: 
Kearney  v.  Snodgrass  and  Minor,  10  Or.  181. 

Giving  or  refusing  to  give  instructions  not  presumed  error, 
where  bill  of  exceptions  does  not  purport  to  show  all 
the  evidence:  Richards  v.  Fanning,  5  Or.  350;  State  v. 
Lee  Yan  Yan,  10  Or.  365;  Yelm  Jim  v.  Territory,  1 
W.  T.  63;  Brown  Bros.  &  Co.  v.  Forest,  1  W.  T.  201; 
Thompson  v.  Territory,  1  W.  T.  548;  Or.  R'y  &  Nav. 
Co.  V.  Galliher,  2  W.  T.  70. 

Objection  to  generality  of  instruction  applicable  to  some 
of  the  issues,  as  to  burden  of  proof,  not  being  made,  it 
is  presumed  on  appeal  to  have  been  applied  to  proper 
issues  only:  Rogers  v.  Wallace,  10  Or.  387. 

Instructions  as  to  the  effect  of  a  written  contract  are  to 
be  reviewed  by  an  examination  of  the  writing:  Id. 

No  error  to  refuse  an  instruction  asked,  if  jury  are  prop- 
erly instructed  on  same  subject:  State  v.  Anderson,  10 
Or.  448;  Seattle  v.  Buzby,'2  W.  T.  25;  Brewster  v. 
Baxter,  2  W.  T.  135. 

The  entire  charge  of  the  court  must  be  considered  to 
ascertain  the  meaning  and  effect  of  any  particular 
portion  excepted  to:  Id.;  Brown  v.  Forest,  1  W.  T.  201. 

Error  to  instruct  a  jury  not  to  regard  mere  slight  vari- 
ances not  affecting  the  credit  of  witnesses:  State  v. 
Swayze,  11  Or.  357. 

Irrelevant  instructions  must  be  properly  excepted  to,  or 
there  is  no  ground  for  reversal:  Kearney  v.  Snodgrass, 
12  Or.  311;  Brown  Bros.  &  Co.  v.  Forest,  1  W.  T.  201; 
Smith  V.  United  States,  1  W.  T.  262. 

How  exceptions  should  be  taken:  Richards  v.  Fanning, 
5  Or.  356;  Murray  v.  Murray,  6  Or,  17;  Kearney  v. 
Snodgrass,  12  Or.  311. 


Jury  and  Jury  Trial.  367 

Jury  and  Jury  Trial  (continued). 

Court  cannot  instruct  jury  to  bring  in  a  certain  verdict: 
Smith  V.  Shattuck,  12  Or.  3G2;  State  v.  Grant,  7  Or. 
414;  State  v.  xAIackey,  12  Or.  154. 

Instruction  assuming  a  fact  which  should  be  left  to  the 
jury  is  error:  Yarnberg  v.  Watson,  13  Or.  11. 

Where  two  contracts  are  in  evidence,  an  instruction 
asked,  applicable  to  one  of  them,  ignoring  the  existence 
of  the  other,  is  properly  refused:  Krewson  &  Co.  v. 
Purdom,  13  Or.  5G3. 

Instruction  outside  of  the  issues,  but  in  favor  of  the  party 
compLaining  of  it,  is  no  ground  for  reversal:  Moorhouse 
V.  Donaca,  14  Or.  430. 

Where  a  fact  has  been  established  on  the  trial  beyond 
controversy,  the  court  may  assume  it  as  a  fact  in  the 
case:  Edwards  v.  Territory,  1  W.  T.  195. 

Unless  evidence  be  given  on  a  fact  put  in  issue  by  the 
pleadings,  no  occasion  arises  for  instruction  concerning 
the  same:  Brown  Bros.  &  Co.  v.  Forest,  1  W.  T.  201. 

Statement  by  the  judge  in  giving  instructions  that  a  cer- 
tain issue  "  is  the  important  point  in  the  case,  in  fact 
the  only  point,"  taken  in  connection  with  other  parts 
of  his  charge,  could  not  have  misled  the  jury:  Schmieg 
V.  Wold,  1  W.  T.  472. 

No  ground  for  reversal  that  an  instruction  was  not  given 
in  the  language  asked,  when  such  failure  has  not 
worked  injury:   Seattle  v.  Buzby,  2  W.  T.  25. 

Incorrect  special  instruction  is  not  cured  by  correct  gen- 
eral instruction  on  the  same  subject:  Baxter  v.  Waite, 
2  W.  T.  228. 

If  the  court  erred  in  admitting  certain  evidence,  but  in 
the  charge  to  the  jury  withdrew  the  evidence  from  their 
consideration,  the   error  was   cured:   P.   S.   I.   Co.   v. 
Worthington,  2  W.  T.  472. 
6.   Conduct  and  Deliberation. 

Affidavits  of  jurors  will  not  be  received  to  impeach  their 
verdict:  Cline  v.  Broy,  1  Or.  89;  Newby  v.  Territory,  1 
Or.  163;  Or.  Cas.  R.  R.  Co.  v.  Or.  Steam  Nav.  Co.,  3 
Or.  178. 

Duties  of  jurors  in  viewing  premises  stated:  Or.  Cas. 
R.  R.  Co.  v.  Baily,  3  Or.  1G4. 

Too  late  after  verdict  to  complain  that  jury  did  not  have 


368  Jury  and  Jury  Trial. 

Jury  and  Jury  Trial  (continned). 

full  view:  Or.  Cas.  R.  R.  Co.  v.  Or.  Steam  Nav.  Co.,  3 
Or.  178. 

Permitting  jury  to  take  written  instructions  to  the  jury- 
room,  condemned  as  bad  practice:  Smith  v.  Lownsdale, 
6  Or.  78.     See  Edwards  v.  Territory,  1  W.  T.  195. 

Purchasing  newspaper  by  juryman  in  criminal  case,  not 
containing  anything  improper  in  regard  to  the  case, 
does  not  prejudice  the  defendant's  rights:  State  v. 
Brown,  7  Or.  186. 

Omission  to  provide  for  the  presence  of  the  accused  or  his 
counsel  when  jury  view  the  premises  in  a  homicide 
case  is  no  error,  where  the  privilege  was  not  asked: 
State  V.  Ah  Lee,  8  Or.  214. 

A  ruling  of  the  trial  court  refusing  new  trial  on  account 
of  a  juror's  drinking  intoxicating  liquor  during  the 
trial  will  not  be  considered  on  appeal:  State  v.  Becker, 
12  Or.  318. 

Attention  of  the  court  must  be  called  to  improper  com- 
ments by  a  party  in  the  presence  of  a  juror  for  the 
objection  to  be  available  on  appeal,  and  refusal  to  grant 
new  trial  therefor  is  not  reviewable:  Tucker  v.  Flour- 
ing Mills  Co.,  13  Or.  28. 

Jury  may  take  written  charge  and  the  statute  to  the  jury- 
room:  Edwards  v.  Territory,  1  W.  T.  195. 

Not  error  to  place  the  jury  in  charge  of  a  sworn  officer  of 
the  court,  who  has  been  a  witness  on  the  trial:  Id. 

Allowing  one  or  more  jurors  to  retire  from  the  jurj^'oom 
for  a  necessary  purpose,  under  supervision  of  the  officer, 
is  not  regarded  as  a  separation  of  the  jury:  Id. 

Verdict  arrived  at  by  resort  to  chance  or  lot  is  contrary 
to  the  statute:  Goodman  v.  Cody,  1  W.  T.  329. 

But  resorting  to  aritlimetical  average  as  preliminary 
means  of  ascertaining  the  amount,  which  is  afterwards 
agreed  on,  is  not  misconduct,  such  as  should  set  the  ver- 
dict aside:  Id. 

The  word  "  chance  "  in  the  statute  is  used  in  its  popular 
sense,  and  has  not  technical  meaning:  Id. 

While  separation  of  jury,  with  consent  of  the  accused  and 
his  counsel,  is  of  doubtful  propriety  in  criminal  cases, 
it  is  not  error:  Hartigan  v.  Territory,  1  W.  T.  447. 

Where  the  accused  and  his  counsel  gave  consent  to  such 


Jury  and  Jury  Trial.  369 

Jury  and  Jury  Trial  (continued). 

separation,   they   should   be   estopped   from  objecting 
thereto  on  appeal:  Id. 

Jury  may  be  permitted  to  carry  a  hat  and  garment,  in- 
troduced in  evidence,  to  the  jury-room:  Doctor  Jack  r. 
Territory,  2  W.  T.  101. 

The  word  "papers"  in  the  statute  allowing  papers  ad- 
mitted in  evidence  to  be  taken  by  the  jury  to  the  jury- 
room  is  to  be  interpreted  to  include  exhibits  generally:; 
Id. 
7.  Verdict. 

Return  of  verdict  into  court,  recited  by  the  record,  is  pre- 
sumed to  mean  that  it  was  rendered  in  open  court:. 
O'Kelly  V.  Territory,  1  Or.  51. 

Accused  presumed  lo  be  present  in  court  when  verdict 
wys  returned,  when  record  is  silent:  Id. 

Verdict  cannot  be  impeached  by  affidavit  of  jurors:  Cline 
V.  Broy,  1  Or.  89;  Newby  v.  Territory,  1  Or.  163;  Or. 
Gas.  R.  R.  Co.  v.  Or.  Steam  Nav.  Co.,  3  Or.  178. 

Jury  need  not  assess  the  value  of  the  property  stolen  in  a, 
larceny  case  when  the  property  is  alleged  to  be  of  a  spe- 
cific value:  Howell  v.  State,  1  Or.  241. 

Verdict  in  forcible  entry  and  detainer  case,  held  sufficient:: 
Altree  v.  Moore,  1  Or.  350. 

Recommendation  of  defendant  to  mercy  is  not  inconsis- 
tent with  verdict  of  guilty:  State  v.  Fitzhugh,  2  Or.  227. 

In  controverted  issues  of  fact,  the  finding  by  the  verdict 
is  presumed  correct:  Bybee  v.  Burbank,  2  Or.  295. 

Special  verdict  defined  to  be  a  finding  of  the  facts  only,, 
leaving  the  judgment  to  the  court:  Dray  v.  Crich,  3  Or.. 
298. 

General  verdict,  with  inconsistent  limitations  added,  will 
not  stand  as  general  verdict:  Id. 

Every  material  allegation  of  complaint  presumed  found 
true  by  jury,  after  general  verdict  in  favor  of  the  plain- 
tiff: Torrence  v.  Strong,  4  Or.  39. 

Error  to  receive  verdict  in  absence  of  the  defendant  in  a 
felony  case:  State  v.  Spores,  4  Or.  198. 

Verdict  in  action  to  lay  out  street  and  assess  damages  and 
benfits  must  state  each  separately:  Portland  v.  Kamm, 
5  Or.  362. 

When  special  findings  are  inconsistent  with  general  ver- 
Or.  Dig.— 24 


370  Jury  and  Jury  Trial. 

Jury  and  Jury  Trial  (continued). 

diet,  former  control:  Rolfes  v.  Russel,  5  Or.  400;  Willey 
V.  Morrow,  1  W.  T.  474. 

In  equity  cases  on  appeal,  verdict  is  not  to  be  disregarded, 
unless  clearly  erroneous:  De  Lashmutt  v.  Everson,  7  Or. 
212;  Swegle  v.  Wells,  7  Or.  222. 

Verdict  is  presumed  as  broad  as  the  issues  to  be  passed 
upon:  Reed  v.  Gentry,  7  Or.  497. 

In  replevin,  a  verdict  for  damages  only,  without  finding 
ownership  or  value,  will  not  sustain  judgment:  Jones  v. 
Snider,  8  Or.  127. 

Where  statute  requires  special  findings,  general  verdict  is 
not  presumed  to  include:  Id. 

Where  two  defendants,  jointly  charged  with  conversion, 
answer,  and  a  general  verdict  against  them  is  found, 
judgment  must  be  given  against  both:  Cauthorn  v. 
King,  8  Or.  138. 

And  in  such  case,  if  but  one  of  the  defendants  has  appealed 
from  Justice's  Court,  the  Circuit  Court  will  have  juris- 
diction of  both,  if  both  appear  and  defend,  and  a  general 
verdict  binds  both:  Id. 

Submission  of  special  questions  discretionary  with  the 
court,  and  may  be  withdrawn  at  any  time  before  ver- 
dict: Rohr  V.  Isaacs,  8  Or.  451. 

Verdict  of  a  sheriff's  jury  under  section  284  of  the  Code 
(sec.  287,  Hill's  A.  L.),  operates  as  a  full  indemnity  to 
him  as  against  the  claimant  of  goods  taken  on  execution: 
Remdall  v.  Swackhamer,  8  Or.  502;  CajDital  Lumbering 
Co.  V.  Hall,  9  Or.  93;  Hexter  v.  Schneider,  14  Or.  184. 

After  verdict  against  him,  claimant  cannot  maintain  re- 
plevin against  the  sheriff":  Id. 

Informal  statement  of  facts  in  pleading  is  cured  by  ver- 
dict: Houghton  and  Palmer  v.  Beck,  9  Or.  325;  Aiken 
Coolidge,  12  Or.  244;  Andros  v.  Childers,  14  Or.  447. 

But  verdict  does  not  supply  a  fact  not  pleaded:  Weiner  v. 
Lee  Shing,  12  Or.  276. 

Verdict  evidently  finding  the  fact  correctly,  error  in  sub- 
mitting a  question  to  the  jury,  which  was  within  the 
province  of  the  court,  will  not  avail  on  appeal:  Johnson 
V.  Shively,  9  Or.  333. 

Where  the  error  in  the  amount  of  the  verdict  was  incon- 
siderable and  ascertainable,  on  appeal  the  judgment 


Jury  and  Jury  Trial.  371 

Jury  and  Jury  Trial  (continued). 

was  not  reversed,  on  respondent's  deducting  the  excess 
and  paying  costs:  T.  &  McK.  v.  M.  &  B.,  9  Or.  405. 

In  criminal  case,  it  is  not  necessary  that  prisoner's  coun- 
sel be  present  when  the  verdict  is  received:  State  v.  Lee 
Ping  Bow,  10  Or.  27. 

Record  reciting  presence  of  accused  at  beginning  of  trial, 
and  no  adjournment  being  noted,  it  is  presumed  he  was 
present  when  verdict  was  rendered:  State  v.  Cartwright, 
10  Or.  193. 

Form  of  verdict  in  action  to  condemn  land  for  railroad: 
Or.  R'y  Co.  v.   Bridwell,   11  Or.  282. 

In  criminal  actions  for  rioting:  State  v.  Louey  and  Loo 
Wan,  11  Or.  326. 

In  replevin,  failure  to  allege  place  where  the  goods  were 
Uiken  is  cured  by  verdict:  Kirk  v.  Matlock,  12  Or.  319. 

Court  has  no  power  to  direct  a  jury  to  bring  in  a  particu- 
lar verdict:  Smith  v.  Shattuck,  12  Or.  362. 

Excessive  verdict  for  damages,  no  ground  for  reversal  on 
appeal;  and  refusal  of  trial  court  to  set  aside  such  ver- 
dict is  not  reviewable:  Nelson  v.  Or.  R'y  etc.  Co.,  13  Or. 
141. 

Verdict  in  replevin  in  favor  of  party  in  possession  need 
not  assess  value:  Prescott  v.  Heilner,  13  Or.  200. 

In  replevin,  failure  to  find  damages  does  not  vitiate  a  ver- 
dict; it  is  presumed  that  the  jury  found  no  damage  sus- 
tained: Id. 

General  verdict  returned,  in  which  a  line  is  drawn  through 
the  name  of  one  of  the  defendants,  in  the  title  of  the 
cause,  is  good  as  against  the  other  defendant:  French  v. 
Cresswell,  13  Or.  418. 

Refusal  of  court  to  submit  special  questions  for  findings 
thereon  is  not  reviewable,  and  is  discretionary:  Swift  v. 
Mttlkey,  14  Or.  59. 

Verdict  of  a  jury  called  by  officer  to  try  the  question  of 
title  of  goods  attached  operates  as  a  protection  to  the 
officer,  but  does  not  conclude  the  claimant  from  bring- 
ing replevin  against  purchaser:  Hexter  v.  Schneider, 
14  Or.  ISO. 

Defective  statement  of  a  good  defense  will  be  aided  by  ver- 
dict: Andros  v.  Childers,  14  Or.  447. 

Some  counts  in  indictments  being  good  and  some  bad. 


372  Jury  and  Jury  Trial. 

Jury  and  Jury  Trial  (continued). 

verdict  is  presumed  to  be  based  on  the  good  counts: 
Leschi  v.  Territory,  1  W.  T.  13. 

From  the  record,  prisoner  presumed  to  have  been  present 
when  verdict  returned:  Id. 

Under  indictment  for  crime  of  high  grade,  verdict  may  be 
found  of  guilty  of  a  lesser  crime  necessarily  included: 
Clarke  v.  Territory,  1  W.  T.  68. 

The  court  is  always  deemed  open  for  purpose  connected 
with  the  jury,  and  can  receive  verdict  after  adjournment 
and  before  the  meeting  of  the  court  at  the  hour  speci- 
fied in  the  order  of  adjournment:  Edwards  v.  Territory, 
1  W.  T.  195. 

Verdict  arrived  at  by  resort  to  chance  or  lot  is  contrary 
to  the  statute:  Goodman  v.  Cody,  1  W.  T.  329. 

After  having  retired  a  second  time  for  deliberation  upon 
corrected  instructions,  given  by  the  court  after  the  jury 
first  returned  into  court  with  a  verdict,  but  before  such 
verdict  was  received  by  the  court,  the  jury  is  presumed 
to  have  returned  their  verdict  pursuant  to  the  corrected 
instructions:  Doctor  Jack  v.  Territory,  2  W.  T.  101. 
Justice  of  the  Peace.  See  Appeal  and  Error;  Forcible 
Entry  and  Detainer;  Jurisdiction. 

Statute  of  1862,  increasing  jurisdiction  from  $100  to  $250, 
constitutional:  Noland  v.  Costello,  2  Or.  57. 

A  justice  must  act  as  court  of  inquiry  only,  and  bind  over 
defendant  to  Circuit  Court,  in  felony  cases:  Williams 
V.  Shelby,  2  Or.  144. 

City  recorder  may  be  made  ex  officio  justice  of  the  peace 
within  city  limits:  Ryan  v.  Harris,  2  Or.  175. 

City  recorder  of  Salem  is  ex  officio  justice  of  the  peace 
within  city  limits:  Craig  v.  Mosier,  2  Or.  323. 

5ut  has  no  jurisdiction  where  process  is  served  outside 
the  city:  Id. 

Appeal  does  not  lie  from  judgment  less  than  twenty  dol- 
lars, though  greater  sum  is  in  coMroversy:  Stoll  v. 
Hoback,  2  Or.  225. 

Justice  need  not  order  repaid  to  judgment  debtor  "earn- 
ings" exempt,  voluntarily  paid  in  by  a  garnishee:  Opitz 
v.  Winn,  3  Or.  9. 

Keed  not  make  an  order  not  directly  authorized,  by  stat- 
ute: Id. 


Justice  of  the  Peace.  373 

Justice  of  the  Peace  (continued). 

Filing  transcript  from  Justice's  Court  on  appeal  is  not 
suilicient  docketing  of  judgment  to  allow  execution 
against  land:  Chapman  v.  Kaleigli,  3  Or.  34. 

Certificate  of  justice  to  copy  of  complaint,  as  a  true  copy- 
thereof,  sufficient  to  authorize  its  service,  with  sum- 
mons: Marooney  v.  ^IcKay,  3  Or.  372. 

Transcript,  and  not  mere  abstract  of  judgment,  must  be 
filed  with  county  clerk  to  give  lien  on  realty:  Dearborn 
V.  Pat  ton,  4  Or.  58. 

Police  judge  of  Portland  may  be  given  powers  of  justice 
in  civil  and  criminal  cases  within  the  city:  State  v. 
Wiley,  4  Or.  184. 

City  recorder  of  Corvallis  is  ex  officio  justice  of  the  peace, 
and  appeal  lies  from  his  judgments:  Sellers  v.  Corval- 
lis, 5  Or.  273;  Corvallis  v.  Stock,  12  Or.  391. 

Jurisdiction  once  obtained  over  the  subject-matter  con- 
tinues until  final  disposition:  Knapp  v.  King,  6  Or.  243. 

After  rendering  judgment  void  for  defect  in  obtaining  ju- 
risdiction of  person  of  defendant,  justice  may  issue  alias 
summons,  and  proceed  to  judgment:  Id. 

May,  after  rendering  but  not  recording  judgment  at  length, 
subsequently  record  the  same:  Id. 

Statute  creating  an  offense  and  affixing  penalty  to  be  re- 
covered in  Justice's  Court  gives  justice  exclusive  juris- 
diction of  the  oflense:  Multnomah  Co.  v.  Knott,  6  Or. 
279. 

Justice  has  jurisdiction  in  forcible  entry  and  detainer  to 
exclusion  of  Circuit  Court:  Thompson  v.  Wolf,  C  Or.  308. 

May  take  case  under  advisement  without  adjourning  to  a 
day  certain,  and  subsequently  render  judgment:  Saun- 
ders V.  Pike,  G  Or.  312. 

Judgment  entered  as  of  the  6th,  when  rendered  on  the 
14th  of  April,  is  not  void  in  the  absence  of  fraud:  Id. 

Omission  to* swear  jury  is  waived  by  parties  proceeding  to 
trial  and  judgment  without  objecting:  Griffin  v.  Pit- 
man, 8  Or.  342. 

No  right  after  rendering  judgment  to  set  it  aside  and 
grant  new  trial:  Id. 

Judgment  rendered  for  want  of  answer,  docket  not  showing 
that  defendant  was  given  an  hour  to  appear,  will  be  re- 
versed on  writ  of  review:  Gaunt  v.  Perkins,  8  Or.  354. 


374  Justice  of  the  Peace. 

Justice  of  the  Peace  (continued). 

Oral  reply  to  counter-claim  having  been  made,  but  not  en- 
tered in  docket,  Circuit  Court  may  on  appeal  allow 
written  reply  presenting  same  issues:  Rohr  v.  Isaacs,  8 
Or.  451. 

Appeal  does  not  lie  from  judgment  of  city  recorder  of  La- 
fayette when  sitting  as  recorder,  as  distinguished  from 
justice  of  the  peace:  Lafayette  v.  Clark,  9  Or.  225. 

Strict  formality  is  not  required  in  allegations  in  pleadings 
before  justice:  Houghton  and  Palmer  v.  Beck,  9  Or. 
325. 

Justice's  Court  has  jurisdiction,  though  service  is  had 
out  of  the  precinct,  but  within  his  county,  without  re- 
gard to  the  place  of  residence  of  the  parties:  Taylor  v. 
Jenkins,  11  Or.  274. 

Summons  may  be  served  by  constable  anywhere  in  the 
county:  Id. 

Justice  has  power  to  adjudge  costs  against  defendant  found 
guilty  of  a  misdemeanor,  and  imprison  him  in  default 
of  payment  of  the  same:  Crowley  v.  State,  11  Or.  512. 

When  the  title  to  real  property  comes  in  question  by  de- 
fense or  plea,  justice  is  ousted  of  jurisdiction:  Sweek  v. 
Galbreath,  11  Or.  516;  Aiken  v.  Aiken,  12  Or.  203. 

Where  plaintiff,  instead  of  justice,  makes  the  indorsement 
of  directions  to  the  officer  on  an  affidavit  for  immediate 
delivery  in  replevin,  the  bond  is  not  void;-  sureties  are 
liable:  Carlon  v.  Dixon,  12  Or.  144. 

Justice  has  jurisdiction  in  a  proper  case  in  replevin,  irre- 
spective of  tlie  place  of  the  taking:  Kirk  v.  Matlock,  12 
Or.  319. 

Has  no  jurisdiction  to  revive  a  justice's  judgment  to  make 
it  a  lien  on  real  property:  Glaze  v.  Lewis,  12  Or.  347. 

Judgment  cannot  be  set  aside  in  equity  for  intimidation  of 
witnesses  of  a  party  during  trial  by  a  casual  broil  oc- 
curring during  the  trial  in  the  Justice's  Court:  Scoggin 
v.  Hall,  12  Or.  372. 

The  amount  claimed,  and  not  the  amount  recovered,  is  the 
test  by  which  the  jurisdiction  of  a  justice  of  the  peace  is 
determined:  Ebey  v.  Engle  and  Hall,  1  W.  T.  72;  con- 
tra, Bagley  v.  Carpenter,  2  W.  T.  19. 

Becords  of  justice  being  distroyed  before  transcript  was 
certified  on  appeal,  the  appellant  is  entitled  to  have  the 


Laches.  375 

Justice  of  the  Peace  (continued). 

cause  docketed  in  the  District  Court,  to  show  the  facts 
and  supply  the  missing  records:  Mullen  v.  Mullen,  1 
W.  T.  192. 
The  Justice's  Court  is  not  the  proper  court  to  supply  the 

destroyed  records:  Id. 
On  a  claiu]  filed  in  a  Justice's  Court  against  S.  Baxter  & 
Co.,  summons  issued  to  S.  Baxter  and  A.  M.  Brooks, 
and  both  appeared  and  pleaded;  held,  that  the  defect 
of  the  parties  appearing  on  the  face  of  the  claim  is 
waived :   Baxter  &  Co.  v.  Scoland  and  Jensen,  2  W.  T. 
8G. 
Whether  the  absense  of  a  venue  in  an  affidavit  sworn  to 
before  a  justice  is  a  fatal  omission,  qusere:  McCoy  v. 
Ayres,  2  W.  T.  203. 
Kidnaping. 

Acquittal  of  assault  and  battery,  no  bar  to  prosecution 
for  kidnaping:  State  v.  Stewart,  11  Or.  52;  S.  C,  11 
Or.  238. 
Laborers'  Liens.     See  Liens. 
Laclies. 

Motion  to  amend  decree,  too  late  after  seventeen  months' 
delay,  unless  excuse  is  shown:  Chapman  v.  Wilber,  5 
Or.  299. 
Delay  of  thirteen  years  in  prosecuting  equitable  claim, 
where  due  diligence  is  required,  with  sufficient  knowl- 
edge to  be  put  on  inquiry,  is  unreasonable:  Weiss  v. 
Bethel,  8  Or.  522. 
When  a  condition  precedent  remains  unperformed  by  one 
party  to  a  contract,  laches  cannot  be  imputed  to  the 
other  party:  Richards  v.  Snider,  11  Or.  197. 
Where  time  is  not  of  the  essence  of  the  contract,  and  the 
plaintiff  is  not  guilty  of  laches,  mere  lapse  oi"  time  will 
Hot   prevent  granting  relief  by  specific   performance: 
Richards  v.  Snyder  and  Crews,  11  Or.  501. 
Delay  in  obtaining  settlement  and  allowance  of  bill  of 
exceptions,   unless  caused   by  the  appellant,  will    not 
prejudice  his  rights:  Ah  Lep  v.  Gong  Choy,  13  Or.  205. 
Minor,  on  coming  of  age,  must  attack  guardian's  sale  for 
fraud  or  want  of  jurisdiction  within  a  reasonable  time, 
or  he  will  be  presumed  to  waive  all  objections:  Walker 
V.  Goldsmith,  14  Or.  125;  Brazee  v.  Schofield,  2  W.  T. 
209. 


376  Laches. 

Laches  (continued). 

Delay  of  time  in  bringing  suit  to  set  aside  a  decree  for 
fraud  is  usually  no  bar  to  relief,  unless  the  party  had 
knowledge  of  the  fraud:  Sedlak  v.  Sedlak,  14  Or.  540. 

But  knowledge,  or  means  of  knowledge  so  that  the  party 
ought  to  have  known,  make  it  necessary  for  party  to 
sue  promptly,  or  be  deemed  guilty  of  laches:  Id. 

So,  when  thirty  years  have  elapsed,    and   in  the  mean 

time  the  rights  of  parties  have  intervened  and  the  party 

has  been  enjoying  the  benefit  of  the  decree,  the  relief 

will  be  barred:  Id. 

Land  Laws.     See  Public  Lands. 

Landlord  and  Tenant.     See  Forcible  Entry  and  Detainer. 

When  the  day  and  month,  of  the  beginning  of  the  term 
of  a  lease,  is  left  blank,  term  was  held  to  run  from  last 
day  of  the  year:  Huffman  v.  McDaniel,  1  Or.  259. 

Tenant  has  no  remedy  against  landlord  for  injury  from 
ill  repair  of  building,  unless  landlord  has  agreed  to  re- 
pair: Kahn  v.  Love,  3  Or.  206. 

Tenant  cannot  make  repairs  at  expense  of  landlord:  Id. 

Agent  in  possession  for  principal  has  no  such  possession 
as  to  be  personally  liable  for  rent  under  statute:  Stew- 
art V.  Perkins,  3  Or.  508. 

Relation  of  landlord  and  tenant,  express  or  implied,  must 
be  shown  in  order  to  sustain  action  for  use  and  occupa- 
tion; otherwise,  remedy  is  ejectment:  Espy  v.  Fenton, 
5  Or.  423. 

Lease  not  describing  premises  is  void  for  uncertainty,  and 
cannot  be  aided  by  parol:  Noyes  v.  Stauff,  5  Or.  455? 

Leasing  for  two  years  by  parol,  not  admissible  to  prove 
lease  for  one  year,  good  under  statute  of  frauds,  on  fail- 
ure to  prove  written  lease  alleged:  Id. 

Parol  lease  for  life,  accompanied  by  possession  and  pay- 
ment of  rent,  creates  a  tenancy  from  year  to  year,  and 
must  be  determined  by  notice  to  quit:  Garrett  v.  Clark, 
5  Or.  464. 

So,  a  lease  for  three  years,  not  in  writing:  Williams  v. 
Ackerman,  8  Or.  405. 

Parol  agreement  subsequent  to  the  leasing,  to  excuse  pay- 
ment of  rent  provided  in  written  lease,  must  have  been 
intended  and  accepted  in  lieu  of  original  lease:  Watson 
V.  Janion,  6  Or.  137. 


Landlord  and  Tenant.  377 

Landlord  and  Tenant  (continued). 

Surrender  and  acceptance  thereof  extinguish  liability  to 
pay  rent  subsequently:  Bush  v.  Smith,  G  Or.  316. 

Surrender  may  be  by  express  consent  or  implied  by  law, 
but  will  not  be  implied  merely  from  delivery  of  keys 
by  tenant  to  landlord:  Id. 

Accepting  possession,  and  reletting  to  other  tenants,  oper- 
ates as  a  consent  to  the  surrender:  Id. 

Lease  is  not  a  conveyance;  it  is  a  chattel  interest:  Ed- 
•     wards  v.  Perkins,  7  Or.  149. 

A  covenant  for  quiet  enjoyment  is  implied  in  a  lease  for 
years:  Id. 

Lease,  with  right  of  immediate  possession,  etc.,  gives  lessee 
the  emblements,  unless  reserved;  and  express  words 
add  nothirig  to  the  right  thereto:  Id. 

The  rule  that  a  tenant  cannot  dispute  his  landlord's  title 
binds  the  successors  of  the  first  tenant:  Jones  v.  Dove, 
7  Or.  467. 

Parol  promise,  without  consideration,  for  future  leasing 
for  term  of  years,  gives  promisee  no  rights,  though  he 
has  possession  obtained  without  request  of  promisor: 
Pulse  V.  Ilamer,  8  Or.  25L 

Lease  reserving  part  of  crop  as  rent  makes  landlord  and 
tenant  co-owners  of  crop,  and  the  tenant  cannot  sell  the 
part  so  reserved:  Cooper  v.  McGrew,  8  Or,  327. 

Lessee,  under  verbal  lease  for  three  years,  going  into 
possession  and  paying  rent,  lease  becomes  a  tenancy 
from  year  to  year,  which  can  only  be  terminated  by 
either  party  by  notice:  Williams  v.  Ackerman,  8  Or. 
405. 

Landlord  may  reserve  crops  raised  by  tenant  as  his  prop- 
erty, by  the  terms  of  the  lease,  until  rent  is  paid:  Fox 
^os.  &  Co.  v.  McKinney,  9  Or.  493. 

Such  lease  is  not  a  chattel  mortgage:  Id. 

In  construing  such  lease,  the  intention  of  the  parties  in 
regard  to  such  reservation  must  govern:  Id. 

Destruction  of  premises  by  fire  does  not  release  obligation 
to  pay  rent  when:  Harrington  v.  Watson,  11   Or.  143. 

Where  a  room  in  a  building  is  leased,  and  the  building  is 
afterward  destroyed,  the  relation  of  landlord  and  ten- 
ant ceases:  Id. 

Such  tenant,  after  the  building  is  destroyed,  has  no  right 


378  Landlord  and  Tenant. 

Landlord  and  Tenant  (continued). 

to  move  another  building  on  the  land,  and  hold  posses- 
sion: Id. 

Complaint  in  forcible  entry  and  detainer  need  not  aver 
service  of  notice  to  quit:  Chung  Yow  v.  Hop  Chung,  11 
Or.  220. 

Service  of  notice  to  quit  may  be  proved  by  parol:  Id. 

Lessee  may  enter,  under  a  valid  lease,  at  any  time  during 
the  term:  Id. 

Execution  of  a  valid  lease  is  a  complete  leasing,  even  be- 
fore entry:  Id. 

Posting  of  an  offer  to  lease,  which  is  accepted  by  a  bid  in 
writing,  agreed  to  by  the  lessor,  held  a  valid  leasing:  Id. 

Complaint  that  D.  (a  third  person)  rented  to  defendant, 
who  promised  to  pay  rental  to  plaintiff,  states  a  good 
cause  of  action:  Schneider  v.  White,  12  Or.  503. 

Material  and  substantial  alteration  of  a  building  by  tenant 
is  waste:  Davenport  v.  Magoon,  13  Or.  3. 

Privilege  in  lease  to  alter  does  not  justify  tearing  down 
and  building  a  new,  though  better,  building:  Id. 

Defendant,  a  mere  intruder,  having  had  the  use  of  prop- 
erty held  by  plaintiff  under  color  of  title,  is  liable  to  the 
latter  for  the  value  of  such  use:  Blumberg  v.  IMcNear  & 
Co.,  1  W.  T.  141. 

Lease  for  a  term  of  years,  tenant  to  make  all  necessary 
repairs,  damages  by  the  elements  excepted,  imposes  on 
landlord  the  obligation  to  rebuild  buildings  destroyed 
by  fire:  Hadlan  v.  Ott,  2  W.  T.  1G5. 

Where  in  suit  by  tenant  for  damages  for  failure  to  rebuild 
in  such  case  the  lease  is  admitted,  the  tenant  is  entitled 
on  the  pleadings  to  at  least  nominal  damages:  Id. 
Land-of5.ce  of  the  United  States.     See  Public  Lands. 
Land  Patents.     See  Public  Lands. 
Larceny. 

Verdict  need  not  assess  value  of  the  property  stolen  when 
the  indictment  alleges  a  value:  Howell  v.  State,  1  Or.  241. 

Offense  committed  without  the  state  continues  and  accom- 
panies the  stolen  property:   State  v.  Johnson,  2  Or.  115. 

May  be  tried  in  any  county  into  which  the  property  is 
brouglit  by  the  offender:  Id. 

Larceny  from  the  person  includes  lesser  crime  of  simple 
larceny:  State  v.  Taylor,  3  Or.  10. 


Larceny.  379 

Larceny  (continued). 

Larceny  of  belt  from  mill  in  custody  of  sheriff  under  at- 
tachment: State  V.  Cornelius,  5  Or.  4G. 
On  compromise  of  larceny  under  the  statute,  no  more  than 
the  value  of  the  property  and  expenses  can  be  exacted: 
Saxon  V.  Hill,  G  Or.  388. 
Larceny  of  horse,  saddle,  and  bridle  at  same  time  and 
place,  the  property  of  the  same  person,  is  but  one  of- 
fense: State  V.  McCormack,  8  Or.  236. 
Conviction  on  indictment  for  taking  the  saddle  and  bridle 

bars  prosecution  for  larceny  of  the  horse:  Id. 
Taking  overpayment,  concealing  the  mistake,  and  appro- 
priating the  money  with  intent  to  defraud  the  owner, 
is  larceny:  State  v.  Ducker,  8  Or.  394. 
Indictment  using  singular  for  plural  verb,  but  evidently 
charging  all  the  defendants  with  the  crime,  is  sufficient: 
State  V.  Lee  Ping  Bow,  10  Or.  27. 
"Stealing  from  and  on  the  person,"  etc.,  in  indictment, 

"  and  on  "  is  mere  surplusage:   Id. 
Evidence  that  the  person  robbed  had  money,  shortly  be- 
fore the  alleged  theft,  of  the  same  amount  as  was  after- 
wards found  on  the  accused,  is  admissible:   Id. 
Under  section  552   (sec.  1763,  Hill's  A.  L.),  indictment 
alleging  that  defendant  "  feloniously  took  and  carried 
away"  is  sufficient,  without  using  the  word  "steal": 
State  V.  Lee  Yan  Yan,  10  Or.  365. 
Branding  and  returning  to  the  range  cattle  apparently 
ownerless    raises   no  presumption  of  criminal  intent: 
State  V.  Swayze,  11  Or.  357. 
Natural  marks  on  cattle,  though  serving  to  identify  them, 

arc  no  indication  of  the  ownership:  Id. 
The  only  presumption  arising  from  the  possession  of  prop- 
erty recently  stolen,  is  one  of  fact,  not  law:  State  v. 
^Hale,  12  Or.  352. 

An  indictment  which  charges  stealing,  at  same  time  and 

place,  a  horse,  the   property  of  one  M.,  and  another 

horse,  the   property  of  - — ,  charges  but   one  offense: 

Territory  v.  Ileywood,  2  W.  T.  180. 

If  such  indictment  be  objectionable  as  double,  the  failure 

-   to  object  until  after  verdict  is  a  waiver:    Id. 

Instruction  that,  if  the  name  of  the  owner  of  the  property 

is  unknown  to  the  jury,  they  may  assume  that  it  was 


380  Larceny. 

Larceny  (continued). 

unknown  to  the  grand  jury  at  the  time  the  indictment 
•was  found,  is  not  error:  Id. 

Law  of  the  Case.     See  Stare  Decisis. 

Legal  propositions  which  have  arisen  and  been  decided 
on  former  appeal,  whether  correctly  decided  or  not,  be- 
come the  law  of  the  case,  so  far  as  applicable  to  the 
facts  developed  on  subsequent  trial:  Powell  v.  D,  S.  & 
G.  R.  R.  Co.,  14  Or.  22. 
But  the  law  of  the  case  does  not  apply  to  the  facts,  but 

only  to  the  law:   Bloomfield  v.  Buchanan,  14  Or.  181. 
And  when  new  evidence  has  altered  the  facts,  the  law  will 
be  applied  to  the  new  facts  as  they  appear:  Id. 

Latent  Ambiguity.     See  Evidence. 

Laws  of  the  Territory.     See  Admiralty;    Constitutional 
Law;  Courts;  Criminal  Law;  Jurisdiction. 

Laws  of  the  United  States.     See  Admiralty;    Constitu- 
tional Law;  Courts;  Criminal  Law;  Jurisdiction. 

Leases.     See  Landlord  and  Tenant. 

Legacies.     See  Administration;  Wills. 

Legatee,  being  successor  in  interest  in  the  subject-matter 
of  a  suit,  may  be  substituted  as  plaintiff  on  death  of 
the  latter  under  section  37  of  the  Code   (sec.  38,  Hill's 
A.  L.):  Murray  v.  Murray,  6  Or.  26. 
Bequest,  "to  be  given  to  him  when  he  is  twenty- two  years 
of  age,"  is  a  vested  legacy,  and  the  legatee's  representa- 
tive takes  if  he  dies  before  that  age:  Warner  v.  Hera- 
bree,  8  Or.  118. 
Bequest  of  residue  of  estate  to  wife  for  her  absolute  use 
and  control,  etc.,  during  life,  held  to  confer  "use,"  but 
not  the  consumption,  of  the  estate:  Leahy  v.  Card  well, 
14  Or.  171. 
Residue  defined;  it  is  ascertained  when  final  account  is 
presented  and  allowed  and  residuary  legatee  is  then  en- 
titled to  take:   Id. 
Such    legatee  is  not  chargeable  with  interest  on  notes 
given  to  the  executor  for  funds  belonging  to  the  estate, 
after  final  settlement:  Id. 

Legislature.     See  Constitutional  Law;  Statutes. 

Letters.     See  Evidence;  Jury  and  Jury  Trial. 

Levy.     See  Attachments;  Executions,  and  Proceedings  Sup- 
plemental; Taxation. 


Liens.  381 

Libel.     See  Admiralty;  Slander  and  Libel. 
Licenses.     See  Dedication;  Easements;  Liquor  Laws. 

License  of  brokers,  who  are  not  brokers  within  the  charter 
of  city  of  Portland:  Portland  v.  O'Neill,  1  Or.  218. 

Money  paid  into  county  treasury  for  license  cannot  be 
recovered  in  action  for  money  had  and  received  on  re- 
fusal of  the  County  Court  to  grant  a  license:  Trainor 
V.  Multnomah  Co.,  2  Or.  214. 

Burden  of  proof  is  on  the  defendant  to  show  that  he  is 
licensed,  in  proceedings  against  him  by  indictment: 
State  V.  Cutting,  3  Or.  260. 

House  kept  for  public  dancing  simply  is  not  a  hurdy- 
gurdy  dance-house,  requiring  a  license  under  the  stat- 
ute of  1864  (sec.  3646,  Hill's  A.  L.):  State  v.  Tillcy, 

9  Or.  125. 

Permissive  use  of  a  way  by  a  portion  of  a  community  is 
a  license,  not  a  dedication:  Smith  v.  Gardner,  12  Or. 
221. 

License  by  shore-owner  to  float  logs  down  a  stream  con- 
fers no  greater  right  on  licensee  than  he  would  have 
without  it  if  the  stream  is  navigable:  Haines  v.  Welch, 
14  Or.  319. 
Liens.  See  Admiralty;  Boats  and  Vessels;  Criminal  Law; 
Judgments;  Mortgages;  Municipal  Corporations. 

L   Mechanics'  Liens. 

2.   Other  Liens. 
1.   Mechanics'  Liens. 

Repeal  of  a  law  by  a  new  law  after  lien  is  acquired  does 
not  divest  the  lien:  Steamer  Gazelle  v.  Lake,  1  Or.  119. 

Proceedings  to  enforce  should  conform  to  the  new  law: 
Id. 

Overseer  who  also  performs  manual  labor  is  entitled  to 
lien  for  all  his  services:  Willamette  Falls  etc.  Co.  v. 
^eraick,  1  Or.  169. 

A  lien  attaches  to  mill  for  labor  on  dam  and  breakwater 
belonging  thereto:  Id. 

Claims  for  anything  but  labor  or  materials  are  non-lien- 
able:  Id. 

Complaint  must  state  where  and  when  the  labor  was  per- 

•    formed:  Willamette  Falls  etc.  Co.  v.  Smith,  1  Or.  171. 

Apportionment  of  moneys  under  boat  lien  law  of  1851 
among  lienors:  In  the  Matter  of  Moore,  1  Or.  179. 

Suit  for  materials  under  lien  law  of  1851  must  be  brought 


382  Liens. 

Liiens  (continued). 

within  one  year:  "Willamette  Falls  etc.  Co.  v.  Perrin,  1 

Or.  182. 
What  sufficient  summons  in  action  to  enforce  a  mechan- 
ic's lien:  Willamette,  Falls  etc.  Co.  v.  Riley,  1  Or.  183. 
Rights  are  fixed  by  law  in  force  when  contract  was  made; 

and  may  be  enforced  under  law  existing  at  the  time  of 

suit:  Id. 
Notice  of  intention  to  hold  lien  must  state  the  amount  of 

indebtedness  claimed:  Id. 
Lien  attaches  under  the  statute  at  time  of  commencement 

of  the  building:  Id. 
Interest  may  be  included   in  the  demand,  and  the  lien 

covers  whole  amount:   Id. 
Lien  does  not  include  ground  as  well  as  the  building,  un- 
less complaint  alleges  defendant  owns  the  same:  Id. 
Lien   claimants  are  estopped   from  denying  notice  of  a 

prior  unrecorded  mortgage  recited  in  owner's  title  deed: 

Holmes  v.  Ferguson,  1  Or.  220. 
Under  act  of  1853  lien  begins  from  time  of  filing  notice, 

and  then   may  relate   back  to  commencement  of  the 

building:  Ritchey  v.  Risley,  3  Or.  184. 
A  sale  on  foreclosure  of  such  lien  under  the  act  passes 

title  free  from  all  liens  created  after  the  commencement 

of  the  work:  Id. 
Proceedings  to  foreclose  must  be  commenced  within  one 

year  after  filing  notice:  Coggan  v.  Reeves,  3  Or.  275. 
An  action  to  foreclose  must  commence  by  filing  complaint: 

Id. 
Lien-holder  made  defendant  in  a  suit  because  subsequent, 

must  still  pursue  statutory  remedy,  and  foreclose  by  fil- 
ing complaint:  Id. 
Complaint  should  show  contract  was  made  with  owner  or 

his  agent:  Marooncy  v.  ^IcKay,  3  Or.  372, 
Lumber  manufacturing  corporation  cannot  hold  lien  for 

work  done  on  a  building:  D.  L.  &  M.  Co.  v.  W.  W.  M. 

Co.,  3  Or.  527. 
Where  lien  claimed  by  such  corporation  was  for  lumber 

and  labor,  and  complaint  did  not  segregate,  whole  lien 

void:  Id. 
Lien  attaches  only  to  building  on  which  the  work  was 

done,  or  the  material  furnished,  and  not  to  others  occu- 
pied by  defendants:  Id. 


LiEina.  883 

Liens  (continued). 

Complaint  must  allege  that  notice  was  filed  in  pursuance 

of  the  statute:  Id. 
The  remedy  is  created  in  derogation  of  the  common  law, 

and  ought  to  be  strictly  construed:  Id.;  Kendall  v.  Mc- 

Farland,  4  Or.  292. 
Right  to  fde  lien  is  not  assignable,  but  when  perfected  it 

may  be  assigned:  Brown  v.  Harper,  4  Or.  89. 
Execution  may  issue  to  sell  the  premises  on  judgment  to 

enforce  lien:  Kendall  v.  McFarland,  4  Or.  292. 
Liens  have  priority  over  all  liens  after  commencement  of 

the  building,  but  statute  must  be  strictly  complied  with: 

Id. 
In  action  to  enforce,  it  should  appear  when  building  waa 

commenced:  Id. 
Judgment  is  a  lien  from  time  it  was  docketed,  when  the 

time  the  building  was  commenced  does  not  appear  by 

the  judgment  roll:  Id. 
Lien  for  material  furnished  cannot  be  enforced  against 

United  States  revenue  cutter  in  state  court:  Goldsmith 

V.  The  Revenue  Cutter,  6  Or.  250. 
A  boat,  under  the  lien  law,  section  17,  chapter  13,  Miscel- 
laneous Laws  (c.  55,  tit.  3,  Hill's  A.  L.),  must  be  a 

complete  vessel:  Korthup  v.  The  Pilot,  6  Or.  297  . 
Material-men,  who  furnish  material  to  a  person  having  a 

contract  to  build  and  deliver  a  part  of  a  boat,  have  no 

lien  on  the  boat  when  completed  by  the  contractors: 

Id.;  Waddell  and  Miles  v.  Steamer  Daisy,  2  W.  T.  76. 
Description  in  a  notice  must  be  as  definite  as  in  a  deed; 

notice  held  insufficient:  Runey  v.  Rea,  7  Or.  130. 
Lien  waived  by  taking  mortgage  on  same  property:  Trul- 

linger  v.  Kofoed,  7  Or.  228. 
Right  of  subsequent  lienors,  on  foreclosure  of  a  mortgage 

on  the  whole  of  the  premises,  to  have  a  building  thereon 

sold  and  the  proceeds  applied  to  their  liens:  Inverarity 

V.  Stowell,  10  Or.  261. 
Act  of  1874  did  not  change  common-law  rule  that  build- 
ing erected  becomes  part  of  the  freehold  immediately: 

Id. 
Evidence  held  to  sustain  finding  that  notice  was  served 

after  building  was  completed:  McGuire  v.  Logus,  11 

Or:  233. 


384  Liens. 

Liens  (continued). 

Under  act  of  1874,  in  the  absence  of  written  contract,  no 
lien  attached,  unless  written  memorandum  of  the  terms 
of  the  contract  for  the  construction  is  refused:  Tatum 
V.  Cherry,  12  Or.  135. 

Machinist  has  no  lien  on  building  for  machinery  and  re- 
pairs, furnished  in  the  usual  course  of  trade,  without 
contract:  Id. 

Lien  does  not  attach  to  public  property,  in  the  absence  of 
express  statutory  provision:  Lumbering  etc.  Co.  v. 
School  District,  13  Or.  283. 

Cannot  be  acquired  or  enforced  against  public  school 
building:  Id. 

The  words  "  over  and  above  all  payments  and  offsets," 
used  in  the  statute,  need  not  be  quoted  in  the  notice; 
sufficient  if  the  fact  appear  that  the  claim  is  due  and 
its  amount  is  stated:  Whittier,  Fuller,  &  Co.  v.  Blakely, 
13  Or.  546;  Baxter  v.  Smith,  2  W.  T.  97;  contra, 
Wheeler  v.  Blakely,  2  W.  T.  71;  but  see  Merchant  v. 
Humeston,  2  W.  T.  433. 

Under  the  Oregon  act  of  1874,  the  lien  attached  when  the 
material  is  furnished,  provided  notice  to  the  owner  is 
subsequently  given:  Whittier,  Fuller,  &  Co.  v.  Blakely, 
13  Or.  546. 

Privilege  of  the  owner,  under  section  4  of  the  act,  to  de- 
posit with  county  clerk  in  case  of  disputed. claims,  and 
so  discharge  pro  tanto  the  lien,  is  optional  with  him: 
Id. 

Whenever  the  owner  fails  or  refuses  to  make  such  deposit, 
or  pay  the  claim,  notice  of  which  has  been  given,  the 
lienor  has  immediate  right  to  sue:  Id. 

Where  the  work  is  to  be  paid  for  in  installments  on  the 
completion  of  specified  portions  of  the  contract,  a  ma- 
terial-man, furnishing  material  for  one  such  portion, 
can  enforce  the  same  as  soon  as  that  portion  is  com- 
plete, without  waiting  until  the  whole  contract  is  done: 
Id. 

Notice  to  be  filed,  after  the  completion  of  the  building, 
with  the  clerk,  under  section  18  of  that  act,  need  not  be 
filed  before  the  action  is  begun:  Id. 

The  object  of  such  notice  is  to  prevent  the  lien  from  laps- 
ing on  completion  of  the  contract:  Id. 


Liens.  3S5 

Liens  (continued). 

Indorsement  on  the  original  notice,  made  by  the  auditor, 
of  filing  and  recording,  is  not  competent  proof  of  the 
recording  thereof:  Jewett  v.  Darlington,  1  W.  T.  GOl. 

Proof  that  such  notice  was  handed  to  the  auditor  after 
office-hours,  with  request  to  record,  is  not  sufficient 
proof  that  the  same  was  recorded:  Id. 

Mechanics'  lien  law  of  1877  was  intended  as  a  substitute 
for,  and  not  a  continuation  of,  the  act  of  1873:  Seattle 
&  \V.  W.  R.  R.  Co.  V.  Ah  Kow,  2  W.  T.  3G. 

All  rights  accrued  under  the  former  act  are  repealed,  ex- 
cept as  kept  alive  by  the  provisions  of  the  latter  act, 
and  all  remedies  to  enforce  such  preserved  rights  are 
under  the  latter  act:  Id. 

Unless  claims  were  filed  in  time  and  manner  prescribed 
in  the  act  of  1877,  for  work  which  ended  with  repeal  of 
statute  of  1873,  the  liens  were  lost:  Id. 

Allowance  of  attorneys' fees  for  foreclosure  of  lien:  Id. 

"A  lot  of  saw-logs  marked  F.  and  A.,  now  lying  in  Ebey's 
slough,"  is  sufficient  identification  and  description  of 
property  in  the  notice:  "Wheeler  v.  Port  Blakely  Mill 
Co.,  2  W.  T.  71. 

The  word  "lot"  defined;  in  the  absence  of  proof  it  will 
be  presumed  to  include  all  the  logs  of  that  description 
at  the  place  named:  Id. 

The  requirement  that  the  notice  shall  contain  "  a  state-^ 
ment  of  the  demand  and  the  amount  thereof,  after  de- 
ducting as  near  as  possible  all  just  credits  and  offsets," 
must  be  strictly  and  literally  followed:  Id. 

But  the  substitution  of  the  word  "  effects  "  for  "  offsets  "' 
in  such  notice  is  a  substantial  compliance,  and  is  suf- 
ficient: Merchant  v.  Ilumeston,  2  W.  T.  433. 

The  notice  is  sufficient  if  it  can  be  determined  therefrom 
the  amount  of  the  demand  before  the  deduction  of  off- 
sets, and  what  amount  remained  due  after  making  the 
deductions:  Baxter  v.  Smith,  2  W.  T.  97. 

Notice  describing  the  buildings  as  one  of  seven,  situate 
on  two  certain  lots,  and  setting  forth  that  the  demand  is 
for  one  seventh  of  the  aggregate  work  and  material  fur- 
Tiished  in  the  seven  buildings,  is  void  for  uncertainty: 
Merchant  v.  Ilumeston,  2  W.  T.  433. 

Or.  Dio.— 25 


386  Liens. 

Liens  (continued). 
.2.   Other  Liens. 

The  taking  of  a  mortgage  for  the  purchase-money  is  a 
waiver  of  vendor's  lien:  Pease  v.  Kelly,  3  Or.  417. 

Vendor's  lien  exists  only  when  there  is  no  higher  security 
taken:  Id. 

Purchaser  without  notice  of  defect  of  title  has  lien  for  his 
improvements:  Hatcher  v.  Briggs,  6  Or.  31. 

Vendor's  lien  cannot  be  asserted  by  person  not  the  vendor, 
though  claiming  to  have  been  the  real  owner:  Kelly  v. 
Ruble,  11  Or.  75. 

Semble,  that  vendor's  lien  does  not  exist  in  Oregon:  Id.; 
contra,  Gee  v.  McMillan,  14  Or.  268. 

Innkeeper  has  lien  upon  property  of  his  guest,  and  prop- 
erty put  in  his  possession  by  his  guest,  for  charges: 
Cook  V.  Kane,  13  Or.  482. 

Property  of  third  person,  in  hands  of  guest,  is  covered  by 
innkeeper's  lien,  if  the  latter  has  no  knowledge  of  the 
rights  of  the  owner,  and  the  property  comes  to  the  inn- 
keeper by  virtue  of  his  character  as  innkeeper:  Id. 

Piano,  received  by  guest  in  his  name,  put  in  the  posses- 
sion of  innkeeper  by  him,  is  covered  by  innkeeper's  lien, 
unless  the  latter  had  knowledge  that  another  was  owner: 
Id. 

Vendor's  lien  for  purchase  price  of  land  arises  in  favor  of 
vendor  when  the  vendee  fails  to  give  notes  in  payment, 
as  agreed,  but  seeks  to  put  the  property  in  his  wife's 
name  for  the  purpose  of  evading  the  contract:  Gee  v. 
McMillan,  14  Or.  268. 

Act  of  1878  (sec.  3683,  Hill's  A.  L.),  giving  lien  for  work 
bestowed  on  personal  property,  is  declaratory  of  the 
common  law,  and  must  be  interpreted  accordingly: 
McDearmid  v.  Foster  &  Co.,  14  Or.  417. 

Actual  possession,  in  the  absence  of  special  agreement,  is 
essential  to  such  lien:  Id.;  Ilogue  v.  Sheriff  of  Lewis 
County,  1  W.  T.  172. 

Where  one  is  employed  to  cut  and  stack  grain  growing  on 
the  land  of  another,  he  does  not  acquire  a  possession 
such  that  he  can  hold  lien  on  the  crop:  Id. 

Lien  for  advances,  under  a  contract  for  leasing  sheep,  ex- 
amined: Breezley  v.  Crossen,  14  Or.  473. 

One  who  harvests  and  thrashes  grain,  and  puts  same  in  a 


Liquor  Laws.  387 

Liens  (continued). 

barn  on  land  not  belonging  to  the  owner  of  the  grain, 
may  have  a  lien  for  his  labor  thereon:  Ilogue  v.  Sher- 
iff of  Lewis  Co.,  1  W.T.I  72. 

The  lien  is  not  divested,  though  the  barn  in  which  the 
grain  was  stored  by  the  lienor  was  not  his  own,  under 
the  circumstances  of  the  case:  Id. 

Vendee  may  pay  existing  liens  upon  chattels  bought  by 
him  without  notice,  and  offset  the  amount  against  the 
purchase  price:  Baker  and  Hamilton  v.  McAllister,  2 
W.  T.  48. 

The  lien  of  a  vendor  of  logs  attaches  to  each  log  for  the 
contract  price  per  thousand  feet,  as  if  separate  contract 
of  sale  had  been  made  respecting  it:  Baxter  v.  Smith, 
2  W.  T.  97. 
liife  Insurance.     See  Insurance. 
Limitation  of  Actions.     See  Statute  of  Limitations. 
Liquidated  Damages,     See  Damages. 
Liquor  La"ws. 

Sale  of  liquor  to  Indians  may  be  punished  under  terri- 
torial act  and  act  of  Congress:  Territory  v.  Coleman,  1 
Or.  191. 

Statute  forbidding  any  person  to  barter,  sell,  or  dispose  of 
liquor  in  any  manner  does  not  forbid  giving:  Wood  v. 
Territory,  1  Or.  223;  State  v.  Cutting,  3  Or.  260. 

The  statute  was  intended  to  regulate  the  traflSc  in  spiritu- 
ous liquor  for  a  consideration  or  motive  of  gain:  Id. 

A  conviction  for  giving  cannot  stand  under  an  indictment 
for  selling  liquor:  Id. 

Allegation  of  sale  of  whisky  is  supported  by  proof  of  sale 
of  any  kind  of  spirituous  liquor:  Frisbie  v.  State,  1  Or. 
248. 

Keeping  open  tippling-house  on  Sunday  is  indictable  un- 
der statute,  and  need  not  be  prosecuted  before  magis- 
trate: Palmer  v.  State,  2  Or.  66. 

Charter  of  city  of  Salem  does  not  operate  to  repeal  or 
change  the  state  license  law  in  that  city:  Id. 

Portland  charter  restricting  granting  of  county  license  in 
the  city  affects  state  law  as  to  the  granting  of  license 
only:  Burchard  v.  State,  2  Or.  78. 

The  penal  provisions  of  the  state  law  still  apply  within  the 
city  limits:  Id. 


388  LiQUOB  Laws. 

Liquor  Laws  (continued). 

Requisites  in  indictment,  and  what  is  surplusage  therein: 
Id. 

Act  of  1854,  relating  to  sale  of  liquor  on  Sunday,  not  re- 
pealed by  implication  by  section  653  of  Code  of  1865 
(sec.  1890,  Hill's  A.  L.):  State  v.  Benjamin,  2  Or.  125. 

Money  paid  to  county  treasurer,  for  a  license  which  was 
refused  by  county  court,  cannot  be  recovered  by  action 
for  money  had  and  received:  Trainor  v.  Multnomah 
Co.,  2  Or.  214. 

Time  and  kind  of  spirituous  liquor  is  immaterial,  and 
need  not  be  strictly  proved  as  alleged  in  indictment; 
but  person  to  whom  sold  must  be  proved  as  alleged: 
State  V.  Cutting,  3  Or.  260. 

Burden  of  proof  is  on  defendant  to  show  he  is  licensed: 
Id. 

If  defendant  sells  liquor,  it  is  immaterial  whether  it  is 
paid  for:  Id, 

Sale  of  candy  and  giving  liquor,  a  subterfuge  of  no  avail: 
Id. 

Power  of  city  of  Portland  to  license,  etc.,  bar-rooms  and 
drinking-shops:  Matter  of  Schneider,  11  Or.  288;  Port- 
land V.  Schmidt,  13  Or.  17. 

Bar-room  and  drinking-shop  defined:  Id. 

"  Quarter,"  in  ordinance,  held  to  mean  quarter  of  year:  Id. 

City  may  require  a  bond  from  applicant  for.  license:  Id. 

Provision  in  bond  for  observance  of  "  all  other  ordinances 
of  said  city,"  restricted  in  its  application  and  construc- 
tion to  ordinances  in  regard  to  licensing  bar-rooms:  Id. 

Ordinance  may  prescribe  qualifications  of  sureties  on 
bond:  Id. 

Right  of  seizure  by  Indian  agent  of  team  and  wagon  haul- 
ing liquor  on  reservation:  Webb  v.  Nickerson,  11  Or. 
382. 

Defenses  in  action  by  owner  for  the  recovery  of  the  prop- 
erty seized:  Id. 

Power  to  license,  tax,  regulate,  and  restrain  includes  power 
to  prohibit  the  carrying  on  of  the  business  without 
complying  with  the  provisions  of  the  ordinance:  Port- 
land V.  Schmidt,  13  Or.  17. 

Such  power  includes,  without  express  provision  in  the 
charter,  the  power  to  provide  the  terms  and  conditions 


Lis  PENDEifs.  389 

Liquor  Laws  (continued). 

upon  which  license  should  be  issued,  the  amount  and 
mode  of  collecting  tax,  and  to  establish  reasonable 
rules  to  be  observed  in  carrying  on  the  business:  Id. 

Power  to  license  includes  power  to  fix  the  license  fee,  but 
not  to  impose  a  fee  operating  as  a  prohibition:  Id. 

Such  power,  and  the  power  to  provide  for  the  good  order 
of  the  cit}',  includes  the  power  to  prohibit  the  sale  on 
particular  days,  or  at  particular  places,  but  not  to  pro- 
hibit generally:  Id. 

County  is  a  necessary  party  defendant  in  proceeding  to 
review  action  of  County  Court  refusing  license:  Wood 
V.  Riddle,  14  Or.  254. 

Act  providing  license  for  cities  and  towns,  as  well  as 
counties,  held  unconstitutional  as  being,  without  com- 
plying with  the  constitution  as  to  amendments,  amend- 
atory of  municipal  charter,  and  as  not  embracing  but 
one  subject  expressed  in  the  title:  State  v.  Wright,  14 
Or.  365! 

Bill  to  license  sale  of  liquor  is  not  a  bill  to  raise  revenue, 
and  may  originate  in  either  house  of  the  legislature:  Id. 

Statute  conferring  on  town  of  Kalama  power  to  license 
the  sale  of  liquor  does  not  repeal  or  limit  the  general 
statute  prohibiting  sale  without  license  from  county 
commissioners:  Corbett  v.  Territory,  1  W.  T.  431. 

Action  for  damages  for  breach  of  contract  of  sale  of 
liquor  to  be  used  for  retailing  in  violation  of  the 
license  law,  cannot  be  maintained  by  unlicensed  dealer: 
Bach,  Messe,  &  Co.  v.  Smith,  2  W.  T.  145. 

Act  of  1883,  to  incorporate  Olympia,  empowering  it  to 
license,  regulate,  and  restrain  drinking-saloons,  repealed 
act  of  1873,  which  placed  limitations  on  its  powers  in 
that  respect:  Iladlan  v.  Olympia,  2  W.  T.  340. 

Wttether  the  amount  of  the  license  fixed  by  ordinance  is 
greater  than  authorized  in  the  exercise  of  police  power 
by  the  city,  questioned  by  minority  of  the  court:  Id. 
Lis  Pendens. 

To  operate  as  notice  binding  innocent  purchaser  for  valu- 
able consideration,  the  cause  should  be  prosecuted  with 
reasonable  dispatch;  suspension  for  five  years  unrea- 
sonable: Bybee  v.  Summers  and  Ellis,  4  Or.  354. 

In  the  absence  of  statute  in  Oregon,  declaring  the  effect 


390  Lis  Pendens. 

Lis  Pendens  (continued). 

of  a  decree  upon  a  lis  pendens  purchaser,  the  common- 
law  rule  "will  prevail:  Walker  v.  Goldsmith,  14  Or.  125. 

Doctrine  is  inapplicable  to  case,  where  a  deed,  conveying 
legal  title,  is  made  pending  the  suit,  when  grantee  was 
already  the  equitable  owner  prior  to  the  suit:  Id. 

Quaere,   when    notice    begins;    whether    after    summons 
served,  or  complaint  filed,  or  before  answer  containing 
new  matter  upon  which  decree  is  ultimately  rendered 
in  favor  of  the  defendant:  Id. 
Locks. 

Lock  bonds  redemption  act  of  1874,  unconstitutional  as 
impairing  obligation  of  contracts:  Goldsmith  v.  Brown, 
5  Or.  418. 

Mandamus  the  proper  remedy  to  compel  owners  of  boats 
to  furnish  lists  of  freight  and  passengers  passed  through 
the  locks  under  act  of  1876  (sec.  3207,  HilFs  A.  L.): 
Board  of  Com.  v.  W.  Trans.  Co.,  G  Or.  219. 

Regulation  in  regard  thereto  in  section  12  of  the  act  (sec. 
3207,  Hill's  A.  L.),  is  reasonable,  and  within  legislative 
power:  Id. 

Corporation  owning  boats,  and  operating  as  a  carrier  under 
state  franchise,  is  subject  to  such  regulations,  and  is  not 
exempted  by  reason  of  owning  the  canal  and  locks:  Id. 
Logs.     See  Timber  and  Logs. 
Lost  Papers.     See  Bonds  and  Undertakings. 

Loss  or  absence  of  material  paper  from  judgment  roll,  no 
ground  for  reversal:  Carland  v.  Heineborg,  2  Or.  75. 

Transcript  on  appeal  must  contain  substituted  copies  of 
all  material  papers  that  have  been  lost  from  the  record, 
and  the  appellant  must  bring  a  perfect  record  to  the  ap- 
pellate court:  Wolf  v.  Smith,  6  Or.  73. 

Ofiicial  bond  being  lost,  equity  will  administer  complete 
relief  to  person  injured  by  acts  of  the  officer:  Howe  v. 
Taylor,  6  Or.  284;  S.  C,  9  Or.  288. 

Where  the  making  of  an  instrument  is  in  dispute,  and 
pretended  copy  is  offered  in  evidence,  its  genuineness 
as  a  copy  and  the  fact  of  execution  is  to  be  left  to  the 
jury:  Rosendorf  v.  Ilirschberg,  8  Or.  240. 

Parol  evidence  of  contents  of  original  and  of  recorded 
copy  admissible  in  action  on  lost  bond  where  both 
original  and  copy  are  lost:  Howe  v.  Taylor,  9  Or.  288. 


Malicious  Prosecution.  391 

liost  Papers  (continued). 

The  presumption  is,  that  a  lost  official  undertaking  was 

duly  executed:  Id. 
Parol  proof  of  the  names  signed  as  sureties  is  admissible: 

Id. 
On  appeal,  original  exhibit  being  lost  before  transcript  is 
sent  up,  cannot  be  supplied  in  the  Supreme  Court  by- 
sworn  copy,  and  appeal  must  be  dismissed:  Corbitt  and 
Macleay  v.  Bauer  and  Roemer,  10  Or.  340. 
In  case  of  loss  of  original  record  by  fire  in  Justice's  Court,  be- 
fore transcript  was  certified  upon  appeal,  but  after  notice 
of  appeal,  the  District  Court  upon  application  of  appel- 
lant will  docket  the  cause,  to  enable  him  to  show  the 
facts  and  supply  the  loss:  Mullen  v.  Mullen,  1  W.  T. 
192. 
The  Justice's  Court  was  not  the  proper  court  to  supply  the 
lost  records:  Id. 
Lost  Property. 

Finder  cannot  use  property  found,  to  remunerate  himself 
for  trouble  and  expense  in  finding  and  caring  for  same: 
Watts  V.  Ward,  1  Or.  8G. 
He  is  not  entitled  to  reward,  unless  reward  was  offered  by 
the  loser:  Id. 
Lotteries. 

Lottery  defined;  payment  of  prizes  in  money  not  essen- 
tial: Fleming  v.  Bills,  3  Or.  28G. 
Essentials  of  the  offense,  and  what  a  sufficient  indictment 
for  setting  up:  State  v.  Dougherty,  4  Or.  200: 
Lunacy.     See  Insanity. 
Machinery.     See  Admiralty;  Liens;  Master  and   Servant; 

Negligence. 
Mail-carriers.     See  Highways. 
Maiming.     See  Mayhem. 
Maintenance.     See  Champerty. 

Malice.     See  Assault  and  Battery;  Criminal  Law;  Damages; 
False  Imprisonment;  Homicide;  Malicious  Prosecution; 
Slander  and  Libel. 
Malicious  Prosecution. 

An  intentional  shooting  a  person,  resulting  in  death,  is 
'  prima  facie  probable  cause  for  arrest  of  the  slayer: 

Glaze  V.  Whitley,  5  Or.  1G4. 
To  sustain  the  action  for  malicious  prosecution,  it  must 


392  Malicious  Prosecution. 

Mc:«licioiis  Prosecution  (continued). 

be  shown  that  the  prosecution  was  both  malicious,  and 
without  probable  cause:  Id. 

Probable  cause  is  question  of  law  and  fact;  province  of 
•the  jury  to  find  the  facts,  and  of  the  court  to  find 
whetlier  they  amount  to  probable  cause:  Id.;  Gee  v. 
Culver,  12  Or.  228. 

Plaintiff  must  allege  the  prosecution  complained  of  was 
determined  in  his  favor,  or  abandoned  by  the  defend- 
ant: Merriman  v.  Morgan,  7  Or.  68;  Ferguson  v.  Tobey, 
1  W.  T.  275. 

Release  from  custody  by  habeas  corpxis,  pending  investiga- 
tion of  the  offense  by  the  grand  jury,  is  not  itself  a  ter- 
mination of  the  prosecution:  Id. 

No  defense  that  defendant  laid  the  facts  before  a  justice, 
and  acted  on  his  advice  in  making  the  arrest:  Gee  v. 
Culver,  12  Or.  228. 

Malice  is  not  a  presumption  or  conclusion  of  law,  but  a 
fact  to  be  proved:  Gee  v.  Culver,  12  Or.  228;  S.  C,  13 
Or.  598. 

Under  a  simple  denial,  defendant  cannot  prove  justifica- 
tion: Id. 

Affirmative  matter,  not  amounting  to  a  justification,  may 
be  joined  to  a  denial,  and  need  not  be  separately  stated: 
Id. 

Malice  need  not  be  anger,  hatred,  or  revenge,  but  includes 
every  unlawful  and  unjustifiable  motive:  Gee  v.  Culver, 
13  Or.  598. 

The  act  itself,  and  all  circumstances,  may  be  inqrdred  into 
to  ascertain  the  motive:  Id. 

Not  the  guilt  of  the  prosecuted,  but  the  intention  of  the 
prosecutor,  that  is  the  subject  of  inquiry:  Id. 

Bad  reputation  of  plaintiff  for  honesty  and  integrity  may 
be  proved  to  rebut  proof  of  want  of  probable  cause,  and 
in  mitigation  of  damages:  Id. 

Plaintiff  cannot  be  asked,  on  direct  examination,  to  state 
the  amount  of  the  damages  he  sustained;  must  state 
the  facts,  and  let  the  jury  decide:  Ferguson  v.  Tobey, 
1  W.  T.  275. 

In  mitigation  for  continued  imprisonment,  it  may  be 
shown  that  the  plaintiff  was  offered  and  refused  bail: 
Id. 


Mandamus.  393 

Malpractice.     See  Damages;   Negligence;   Physicians  and 

Surgeons. 
Mandamus. 

Lies  to  compel  officer  to  perform  a  duty  resulting  from  his 
office,  enjoined  upon  him  by  law:  Ball  v.  Lappius,  3 
Or.  55. 

Proper  remedy  only  when  party  has  legal  right,  and  no 
legal  remedy:  Id.;  Ilabcrsliam  v.  Scars,  11  Or.  431. 

The  right  must  be  certain,  and  distinctly  proved:  Id. 

The  granting  or  refusing  the  writ  is  discretionary:  Id. 

Ordinance  requires  city  marshal  to  procure  and  select, 
subject  to  approval,  a  small-pox  hospital;  the  duty 
cannot  be  enforced  by  mandamus:  Id. 

Office  of  writ  same  under  Code  as  at  common  law:  War- 
ner V.  Myers,  3  Or.  218;  Durham  v.  Monumental  S.  M. 
Co.,  9  Or.  41;  Habersham  v.  Scars,  11  Or.  431. 

Cannot  be  used  to  determine  ultimate  right  to  office: 
Id.;  Warner  v.  Myers,  4  Or.  72. 

Answer  denying  the  legality  of  the  election  of  the  peti- 
tioner to  office  which  he  holds  will  not  abate  writ:  Id. 

An  answer  declaring  that  a  contest  was  pending  to  de- 
termine the  legality  of  the  election  was  struck  out:  Id. 

An  answer  to  petition  of  one  having  possession  of  office 
and  certificate  of  election,  which  declares  that  a  major- 
ity of  the  legal  votes  were  cast  for  the  defendant,  was 
struck  out  on  motion:  Id. 

Proper  remedy  when  school  clerk  has  funds,  and  refuses 
to  pay  warrant  presented:  Howard  v.  Bamford,  3  Or. 
565. 

So,  to  require  incumbent  to  deliver  to  successor  appurte- 
nances of  office:  Warner  v.  Myers,  4  Or.  72. 

The  only  question  to  be  determined  is,  to  whom  certificate 
of  election  was  awarded:  Id. 

Mandamus  to  County  Court  to  complete  its  record,  proper 
remedy  in  Circuit  Court,  and  not  injunction:  Road  Co. 
V.  Douglas  Co.,  5  Or.  373. 

Proper  remedy  to  test  the  qualifications  of  voters,  the 
legality  of  the  conduct  of  the  judges,  or  the  canvass  of 
election  selecting  county  seat,  and  not  injunction: 
•McWliirter  v.  Brainard,  5  Or.  426. 

Proper  remedy  to  compel  owners  of  steamboats  to  furnish 
freight  and  passenger  lists  passed  through  the  locks,  as 


394  Mandamus. 

Mandamus  (continued). 

required  by  act  of  1876  (sec.  3207,  Hill's  A.  L.):  Board 
of  Com.  V.  W.  Trans.  Co.,  6  Or.  219. 

Not  proper  remedy  where  there  is  a  plain,  speedy,  and 
adequate  remedy  at  law:  Durham  v.  Monumental  S.  M. 
Co.,  9  Or.  41. 

Will  not  lie  to  compel  the  transfer  of  stock  in  a  corpora- 
tion: Id. 

Lies  to  board  of  canvassers  of  election  to  perform  minis- 
terial functions  in  canvassing,  though  their  canvass  is 
completed:  Simon  v.  Durham,  10  Or.  52. 

Motion  to  dismiss  appeal  from  refusal  to  grant  the  writ, 
on  the  ground  that  the  question  of  the  right  to  office  is 
involved  in  another  case  pending,  denied:  Id. 

Supreme  Court  may,  on  application  for  mandamus  to  com- 
pel enforcement  of  its  decrees,  inquire  into  the  merit  of 
an  injunction  of  a  Circuit  Court  restraining  the  same: 
State  V.  Jacobs,  11  Or.  314. 

The  issuing  of  the  writ  is  conclusive  as  to  the  invalidity 
of  the  injunction:  Id. 

Sheriff  violating  such  restraining  order  is  entitled  to  dis- 
charge in  proceedings  for  contempt  in  such  Circuit 
Court,  on  producing  the  writ  of  mandamus:  Id. 

Mandamus  does  not  lie  to  compel  sheriff  to  levy,  where 
there  is  no  showing  that  an  action  on  his  bond  for  his 
neglect  or  refusal  would  be  unavailing:  Habersham  v. 
Sears,  11  Or.  431. 

Judge  may  be  compelled  to  sign  bill  of  exceptions  by 
mandamus:  Ah  Lep  v.  Gong  Choy,  13  Or.  205. 

Duty  of  clerks  of  counties  to  make  out  notices  of  election, 
naming  the  offices  to  be  filled,  etc.,  before  elections,  is 
imperative,  and  may  be  enforced  by  mandamus:  State 
V.  Ware,  13  Or.  380. 

When  the  question  is  one  of  public  duty  and  in  which  the 
general  public  is  interested,  the  relator  need  show  no 
special  interest  other  than  as  a  citizen  and  voter:  Id. 

Proper  remedy  to  compel  sheriff  to  release  from  assess- 
ment property  wrongly  assessed,  where  he  refuses,  upon 
proper  showing,  to  remit  the  tax  illegally  charged: 
Smith  V.  King,  14  Or.  10. 

Mandamus  is  not  the  proper  remedy  to  compel  the  treas- 
urer of  Umatilla  County  to  pay  over  to  Morrow  County 


Marriage.  395 

Mandamus  (continued). 

school  taxes  collected,  upon  the  creation  of  the  latter 
county  out  of  the  former:  Morrow  Co.  v.  Hendry x,  14 
Or.  397. 
The  act  not  being  specially  enjoined  as  a  duty  resulting 
from  an  office,  trust,  or  station,  mandamus  does  not  lie: 

Id. 

Power  of  judge  at  chambers  relative  to  writs  of  mandate 

not  determined,  but  appearance  of  defendant  in  court 

and   subsequent  proceedings  cured  every  irregularity: 

Clarke  County  v.  Brazee,  1  W.  T.  199. 

Statutes  have  rendered  the  difficult  learning  of  old  writs 

obsolete:  Id. 
The  complaint  in  the  case  is  sufficient  to  entitle  to  the  re- 
lief sought:  Id. 
County  having  applied,  through  its  prosecuting  attorney, 
for  writ  against  county  commissioners,  such  attorney 
cannot,  though  it  be  the  wish  of  both  parties,  represent 
both  in  subsequent  proceedings:  Clarke  Co.  ex  rel.  etc. 
V.  Commissioners  of  Clarke  County,  1  W.  T.  250. 
Mandate.     See  Appeal  and  Error. 
Manslaughter.     See  Criminal  Law;  Homicide. 
Maritime  Contracts.     See  Admiralty;  Boats  and  Vessels; 

Contracts. 
Maritime  Law.     See  Admiralty. 
Marriage.     See  Divorce;  Husband  and  Wife. 

Is  a  valuable  consideration;  when  deed  set  aside  for  fraud: 

Bonser  v.  Miller,  5  Or.  110. 
Deposition  taken  in  another  proceeding  between  different 
parties,  to  prove  marriage,  not  admissible  under  section 
819  of  the  Code  (sec.  829,  Hill's  A.  L.) :  Murray  v.  Mur- 
ray, 6  Or.  26. 
Cohabitation,  and  recognition  in  society  as  husband  and 
wife,  is  prima  facie  proof  of  marriage  in  a  civil  suit:  Id. 
Contract  is  not  within  the  purview  of  constitutional  inhi- 
bition of  laws  impairing  obligation  of  contracts:  Rugh 
V.  Ottenheimer,   6  Or.   231;    Ma>mard  v.  Valentine,  2 
W.  T.  3;  Maynard  v.  Hill,  2  W.  T.  321. 
Concealment  by  tlie  woman,  from  intended  husband,  of  the 
.fact  that  she  had  been  the  mother  of  a  bastard,  not  such 
fraud  as  will  annul  the  marriage:  Smith  v.  Smith,  8 
Or.  100. 


396  MARRLA.GE. 

Marriage  (continued). 

Complaint  for  breach  of  promise,  what  sufficient:  Lahey 
V.  Knott,  8  Or.  198. 

Evidence  and  instructions;  when  plaintiff  must  prove  re- 
quest or  offer  to  marry  on  her  part  before  action :  Id. 

On  marriage,  at  common  law,  personalty  of  the  wife  in 
her  possession  or  subsequently  reduced  to  her  posses- 
sion, or  that  of  the  husband  during  the  coverture,  be- 
came the  property  of  the  husband:  Cressey  v.  Tatom, 
9  Or.  541. 

In  crim.  con.,  the  marriage  may  be  proved  by  the  testi- 
mony of  eye-witnesses  or  of  the  parties:  Jacobsen  v. 
Siddal,  12  Or.  280. 

State  has  paramount  and  controlling  interest  in  marriage, 
and  legislature   has  plenary  power  over   divorce  and 
-marriage:  Maynard  v.  Valentine;  2  \V.  T.  3;  Maynard 
V.  Hill,  2  W.  T.  321. 
Married  Women.     See  Husband  and  Wife. 
Marshal.     See  Summons. 
Marshaling.     See  Liens;  Mortgages. 
Master  in  Chancery.     See  Affidavits. 
Master  and  Servant.     See  Damages;  Municipal  Corpora- 
tions; Negligence. 

Corporation  liable  for  carelessly  firing  a  gun  by  agent, 
though  done  in  a  manner  different  from  orders:  Oliver 
V.  N.  P.  T.  Co.,  3  Or.  84. 

Agent  alone  is  liable  where  he  abandons  principal's  busi- 
ness and  causes  injury;  but  otherwise,  when  he  does 
the  business  of  the  principal,  although  he  does  not  act 
in  the  manner  directed:  Id.;  French  v.  Cresswell,  18 
Or.  418. 

Person  employed  about  dangerous  machinery  must  use 
his  thinking  faculties:  Stone  v.  Oregon  City  Mfg.  Co., 
4  Or.  52. 

Rule  of  liability  of  master  for  defective  machinery  fur- 
nished servant:  Id. 

In  action  for  negligence  in  not  supplying  suitable  appli- 
ances, it  was  held  error  to  instruct  on  general  propo- 
sitions of  law  as  to  defendant's  duty  in  employing  fel- 
low-servants: Willis  V.  Or.  R'y  &  Nav.  Co.,  11  Or.  257. 

Rule  of  liability  of  master  for  injury  occasioned  by  negli- 
ncnce  of  fellow-servants  and  vice-principals:  Id. 


Merger.  397 

Master  and  Servant  (continued). 

Foreman  of  a  gang  of  laborers  erecting  a  shed  under  di- 
rections  of    a   superior  is   a   fellow-servant   with   the 
laborers:  Id. 
Exemplary  damages  for  wrongful  act  of  servant,  when 
recoverable:  Sullivan  v.  Or.  R'y  &  Nav.  Co.,  12  Or.  392. 
Master   liable  for  damage  by  trespass   by  his   sheep  in 
charge   of   a   servant,    although   the   latter   disobeyed 
orders  in  occasioning  the  damage:  French  v.  Cresswell, 
13  Or.  418. 
The  relation  between  master  and  servant  does  not  express 
the  more  complex  relation  between  master  and  crew: 
Nickels  V.  Griffin,  1  W.  T.  374. 
City  liable  for  negligence  of  contractor,  working  under 
supervision  of  city  surveyor,  in  improvement  of  street, 
whereby  adjoining   lot  is   injured:    City  of  Seattle   v. 
Buzby,  2  W.  T.  25. 
In  such  case  the  contractor  is  servant  of  the  city,  and  the 
rnlo  oi  respondeat  superior  HTpTj^lies:  Id. 
Master  of  Vessel.     See  Admiralty. 

Power  of  master  to  bind  owners  of  a  vessel:    Gove   v. 

Moses,  1  W.  T.  7. 
Cannot  act  as  agent  of  consignee  until  his  duty  as  master 

ceases:  Id. 
Relation  of  master  and  crew;    source,  measure  of,^  and 
reason   for   master's   authority:    Nickels   v.   Griffin,  1 
W.  T.  374. 
It  is  the  duty  of  master  to  maintain  order  on  vessel,  of 
sailor  to  obey,  and  there  is  a  correlative  right  of  sailors 
to  the  protection  of  master  from  assault  by  mate:  Id. 
Master  is  responsible  for  injuries  inflicted  on  seaman  by 
mate  without  sufficient  cause,  with  master's  knowledge: 
Id. 
Mayhem.  .    . 

Any  offense  made  punishable  by  section  527  of  Criminal 
Code  (sec.  1735,  Hill's  A.  L.),  may  be  called  mayhem 
in  indictments:  State  v.  Vowels,  4  Or.  324. 
Measure  of  Damages.     See  Damages. 
Mechanics'  Liens.     See  Liens. 
Merger. 

If  the  owner  in  whom  different  estates  have  united  has 
an  interest  in  keeping  them  separate,  the  intent  to  keep 


398  Merger. 

Merger  (continued). 

them  separate  is  presumed,  and  there  is  no  merger: 
Watson  V.  Dundee  M.  &  T.  I.  Co.,  12  Or.  474. 

There  can  be  no  merger  where  an  outstanding  estate  in- 
tervenes: Id. 
Mesne  Profits. 

Mortgagee  in  possession  cannot  claim  his  possession  ia 
unlawful,  when  he  is  sued  for  the  mesne  profits:  Ren- 
shaw  V.  Taylor,  7  Or.  315. 

Court  may  order  a  reference  to  ascertain  the  amount  of 
such  mesne  profits:  Id. 

After  ejectment,  when  the  person  ejected  has  established 
his  right  by  a  suit  in  equity,  he  may  recover  the  mesne 
profits  in  the  same  suit,  which  he  was  adjudged  to  pay 
by  the  judgment:  Starr  v.  Stark,  7  Or.  500;  Hill  v. 
Cooper,  8  Or.  254. 

Such  suit  does  not  operate  on  the  judgment  at  law,  but 
on  the  parties,  and  the  decree  may  enjoin  the  enforcing 
of  the  judgment:  Id. 

Rents  and  profits  received  to  the  use  of  another  by  one 
in  possession  with  the  legal  title  may  be  recovered  in  a 
suit  in  equity:  Hill  v.  Cooper,  8  Or.  254. 

In  an  action  to  recover  rents  and  profits,  proof  of  the  use 
and  occupation  and  the  annual  value  of  the  premises  is 
admissible:  Hill  v.  Cooper,  10  Or.  153. 

Evidence  that  co-tenant  in  possession,  who  has  redeemed 
the  property  at  tax  sale  and  claims  to  hold  until  reim- 
bursed, has  been  receiving  the  whole  of  the  rents  and 
profits,  is  admissible:  Minter  v.  Durham,  13  Or.  470. 
Militia. 

It  is  the  duty  of  the  County  Court  to  provide  an  armory 
for  a  militia  company:  Mountain  v.  Multnomah  Co.,  8 
Or.  470. 

The  County  Court  must  audit,  allow,  and  cause  to  be  paid, 
necessary  expenses  of  same,  and  its  decisions  thereon 
may  be  reviewed  by  a  writ  of  review:  Id. 

But  on  review  it  must  appear  affirmatively  by  the  record 
that  every  step  to  make  the  claim  against  the  county  a 
proper  one  has  be«n  duly  taken:  Vincent  v.  Umatilla 
Co.,  14  Or.  375. 
Mills.     See  Dams;  Water  and  Watercourses. 

Breakwater  and  dam  are  part  of  mill,  so  that  lien  for  work 


Mines  and  Mining.  399 

Mills  (continued). 

on  the  dam  attaches  to  the  mill:  Willamette  Falls  etc. 

Co.  V.  Remick,  1  Or.  169. 
Agreement  to  convey  land,  mill,  etc.,  held  to  include  all 

things  necessary  to  the  enjoyment  of  the  mill  privilege, 

and  to  permit  raising  the  dam  where  necessary  to  the 

full  use  and  enjoyment  of  the  property:    Brugger  v. 

Butler,  6  Or.  459. 
Right  of  way  granted  for  mill-race  does  not  include  a 

right  to  appropriate  water  of  a  stream,  crossing  the 

right  of  way,  on  grantor's  land:   Miller  v.  Vaughn,  8 

Or.  333. 
Such  grant  is  a  mere  easement,  and  an  express  reservation 

of  water  flowing  on  grantor's  land  is  unnecessary:  Id. 
Right  to  overflow  adjoining  land  is  an  easement  which 

will  pass  by  grant  of  a  mill  and  its  appurtenances: 

Jackson  v.  Trullinger,  9  Or.  393. 
Mines  and  Mining.     See  Public  Lands. 

Mines  of  precious  metals  belong  to  the  eminent  domain  of 

the  sovereignty:  Gold  Hill  Q.  M.  Co.  v.  Ish,  5  Or.  104. 
Occupancy  and  pre-emption  under  act  of  Congress  of  July 

26,  1866:  Id. 
Patent  to  agricultural  lands  does  not  pass  title  to  known 

deposits  of  precious  metals:  Id. 
Failure  of  government  surveyors  to  segregate  mining  from 

agricultural  land   does  not  afiect  rights  of  occupant 

miners:  Id. 
Water  rights  for  mining,  under  United  States  statutes,  can- 
not be  lost  by  non-user  alone,  short  of  the  period  of 

limitations  for  real  actions:    Dodge  v.  Marden,  7  Or. 

456. 
Such  rights  may  be  abandoned,  which  is  evidenced  by  an 

act  showing  an  intention  to  surrender  or  forsake  the 

ri^it:   Id. 
Under  the  Oregon  statute,  if  a  water  right  is  so  abandoned, 

and  the  person  having  the  right  ceased  for  one  year 

thereafter  to  exercise  any  act  of  ownership  over  it,  his 

right  becomes  lost:  Id. 
Purchaser  of  land  is  not  bound  to  disclose  his  knowledge 

of  a  mine  to  the  vendor:  Caples  v.  Steel,  7  Or.  491. 
But  his  willful  misrepresentation  of  the  facts  will  render 

the  sale  voidable:  Id. 


400  Minors. 

Minors.     See   Guardian   and  Ward;    Infants;    Parent   and 

Child. 
Misdemeanor.     See  Criminal  Law. 
Misjoinder.     See  Parties.  Pleadings. 
Misrepresentations.     See  Fraud  and  Deceit. 
Mistake  and  Accident. 

Money  paid  under  mistake  of  law  in  absence  of  fraud 
cannot  be  recovered:  Johnson  v.  McGinness,  1  Or.  292. 

Due  diligence  must  be  shown  to  enable  court  to  enjoin  a 
judgment  for  mistake  or  accident:  Wells,  Fargo,  &  Co. 
V.  Wall,  1  Or.  295. 

To  set  aside  a  judgment,  actual  and  specific  fraud,  or  sur- 
prise, accident,  or  mistake,  must  be  specific  in  bill: 
Snyder  v.  Vannoy  and  Hyland,  1  Or.  344. 

Mistake,  accident,  or  fraud  must  appear,  or  equity  will 
not  relieve  from  ignorance  of  a  fgict:  Fahie  v.  Pressey, 
2  Or.  23. 

Mistake  as  ground  for  a  relief  from  a  writing  must  clearly 
show  the  mistake  contrary  to  the  intention:  Shively  v. 
Welch,  2  Or.  288. 

Mistake  of  clerk  in  not  entering  judgment  by  confession 
in  the  judgment-book  does  not  affect  validity  of  judg- 
ment, except  in  favor  of  one  who  has  been  misled  by 
the  omission:  King  v.  Higgins,  3  Or.  406. 

Evidence  must  be  clear  and  satisfactory  to  warrant  cor- 
rection of  deed  for  a  mistake:  Lewis  v.  Lewis,  4  Or. 
177;  Stephens  v.Murton,  6  Or.  193;  Ramsey  v.  Loomis, 
6  Or.  367;  Remillard  v.  Prescott,  8  Or.  37. 

Must  have  been  the  mutual  mistake  of  the  parties:  Evarts 
V.  Steger,  5  Or.  147. 

What  complaint  must  show  in  suit  to  reform  deed  on  the 
ground  of  mistake:  Lewis  v.  Lewis,  5  Or.  169;  Stephens 
V.  Murton,  6  Or.  193;  Ramsey  v.  Loomis,  6  Or.  367. 

Reformation  will  not  be  granted  for  fraud,  where  com- 
plaint alleges  mistake  only:  Stephens  v.  Murton,  6  Or. 
193. 

But  where  the  language  of  the  complaint  is  ambiguous 
as  to  whether  fraud  or  mistake  is  alleged,  the  objection, 
if  not  taken  in  time,  is  waived:  Baldock  v.  Johnson, 
14  Or.  542. 

Land  not  included  in  the  deed,  omitted  by  mistake,  may 
be  inserted:  Ramsey  v.  LoomiSj  6  Or.  367. 


Money.  401 

Mistake  and  Accident  (continued). 

It  must  be  shown  that  the  grantor  was  a  party  to  the  mis- 
take in  the  deed:  Remillard  v.  Prescott,  8  Or.  37. 

Equity  will  not  interpose  to  correct  a  deed  made  pendente 
lite  between  parties  to  a  divorce  suit,  which  is  made  in 
consideration  of  not  defending  the  suit:  Phillips  v. 
Thorp,  10  Or.  494. 

Supreme  Court  has  power,  under  section  100  of  the  Code 
(sec.  102,  Hill's  A.  L.),  to  relieve  from  a  mistake  in  a 
decree  occurring   in   Circuit  Court,  where    the  oppor- 

•  tunity  to  apply  to  the  Circuit  Court  was  lost  by  reason 
of  an  appeal  having  been  taken:  Wright  and  Jones  v. 
Edwards,  10  Or.  288. 

To  warrant  correction  of  decree,  mistake  must  be  clearly 
proved,  and  not  a  judicial  mistake,  and  there  must  be 
no  other  remedy:  Smith  v.  Butler,  11  Or.  46. 

Mistake  in  decree  in  description  of  a  division  line  estab- 
lished by  referees  corrected:  Id. 

Party  doing  work  on  another's  contract,  by  mistake,  can- 
not recover  the  value  of  such  work:  Rohr  v.  Baker,  13 
Or.  350. 

Mistake  must  be  remedied  in  equity,  and  cannot  be  shown, 
by  parol  proof  varying  the  terms  of  a  deed,  as  a  defense- 
in  ejectment:  Holcomb  v.  Mooney,  13  Or.  503. 

Amicable  adjustment  of  disputed  claims  will  not  be  set 
aside  for  mistake  of  law  or  fact,  in  the  absence  of  fraud 
or  want  of  equity:  Wells  v.  Neff,  14  Or.  66. 

Total  want  of  understanding  of  the  nature  or  value  of  es- 
tate conveyed  by  daughter  to  mother  without  consider- 
ation warrants  relief  on  the  ground  of  mistake:  Bal- 
dock  V.  Johnson,  14  Or.  542. 

Mistake  as  a  defense  to  action  on  account  stated:   Baxter 
V.  Waite,  2  W.  T.  228. 
Money^ 

State  has  power  to  require  taxes  to  be  paid  in  coin,  and 
such  is  the  law  in  Oregon:  Whittaker  v.  Haley,  2  Or.  128. 

Fees  of  officers  may  be  paid  in  any  legal  money,  and  offi- 
cer has  no  right  to  demand  coin:  Coffin  v.  Coulson,  2 
Or.  205. 

On  complaint  for  $80,  plaintiff  cannot  recover  $114,  on 
ground  that  coin  was  worth  that  in  currency:  Davis  v. 
Mason,  3  Or.  154. 

Ou.  Dig.— 26 


402  Money. 

Money  (continued). 

Evidence  of  value  of  coin  or  custom  of  banKS  to  pay  coin 
on  checks  not  admissible:  Id. 

Contract  to  pay  in  gold  coin  must  be  in  writing:  Id. 

Co'iiplaint  on  contract  to  pay  in  gold  coin  need  not  allege 
the  contract  was  in  writing:  Taylor  v.  Patterson  Co.,  5 
Or.  121;  Russell  v.  Swift,  5  Or.  233. 

Statute  construed;  does  not  alter  rules  of  pleading,  but 
mode  of  proof:  Id. 

Constitution,  section  1,  article  9,  does  not  prohibit  estab- 
lishing banks,  except  those  issuing  notes  and  bills  to 
circulate  as  money:  State  v.  H.  S.  &  L.  A.,  8  Or.  396. 

Any  mark  commonly  understood  and  employed  in  busi- 
ness transactions  to  denote  the  division  into  dollars  and 
cents,  sufficient  in  general  records  to  indicate  that  the 
figures  represent  money:  De  Lashmutt  v.  Sellwood,  10 
Or.  319. 
Money  Had  and  Received.     See  Assumpsit. 

Does  not  lie  for  money  paid  under  mistake  of  law  without 
fraud :  Johnson  v.  McGinness,  1  Or.  292. 

Nor  for  money  deposited  under  statute  with  county  treas- 
urer, on  application  for  liquor  license  which  was  denied: 
Trainer  v.  Multnomah  Co.,  2  Or.  214. 

County  may  recover  money  paid  to  officer  under  claim  of 
right  for  his  services  against  law:  Grant  Co.  v.  Sels,  5 
Or.  243. 

The  nature  and  scope  of  the  action  of  money  had  and  re- 
ceived: 9  Or.  481. 

Lies  to  recover  money  paid  by  purchaser  at  sale  on  exe- 
cution, issued  without  a  judgment:  Id. 

Lies  for  money  paid  by  debtor  to  creditor  to  be  applied 
on  a  certain  debt,  and  which  is  not  so  applied:  Stewart 
V.  Phy,  11  Or.  335. 

In  such  action,  it  is  unnecessary  to  allege  a  promise  to  re- 
pay: Id. 

Lies  to  recover  money  obtained  by  defendant,  which  ex 
sequn  et  6ono  belongs  to  plaintiffs:  Peterson  v.  Foss,  12 
Or.  81. 
Month. 

When  the  word  "month  "  occurs  in  a  statute,  lunar  month 
is  intended,  unless  the.  statute  indicates  otherwise:  Hale 
V.  Finch,  1  W.  T.  517. 


Mortgages.  403 

Monuments.     See  Boundaries. 
Mortgages.     See  Chattel  Mortgages. 

1.  The  Mortgage;   its  Construction  and  Validity. 

2.  Foreclosure  and  Redemption. 

3.  Priority  and  Rights  of  Parties. 

1.   The  ^Iortgage;   its  Construction  and  Validity. 

A  mortgage  attested  by  one  witness  will  be  upheld  in 
chancery  between  the  parties;  Moore  v.  Thomas,  1  Or. 
201. 

So,  a  mortgage  unrecorded  and  unacknowledged:  Id. 

Effect  of  signing  by  one  partner,  with  assent  of  other,  the 
firm  name  to  note  and  mortgage:  Chavener  v.  Wood,  2 
Or.  182. 

Mortgage  does  not  vest  title  or  interest  in  mortgagee  in 
the  property,  but  is  a  mere  security:  Anderson  v.  Bax- 
ter, 4  Or.  105;  Sellwood  v.  Gray  and  De  Lashmutt,  11 
Or.  534. 

Is  incident  to  the  debt;  and  a  transfer  of  the  note  or  other 
evidence  of  indebtedness  carries  the  mortgage: 'Roberts 
V.  Sutherlin,  4  Or.  219. 

The  County  Court  may  order  guardian  to  mortgage 
minor's  real  property:  Trutch  v.  Bunnell,  5  Or.  504; 
contra,  Trutch  v.  Bunnell,  11  Or.  58. 

Forfeiture  of  the  debt  to  school  fund  for  usury  carries 
mortgage  security  also:  Chapman  v.  State,  5  Or.  432. 

Pre-existing  debt  or  liability  is  sufficient  consideration: 
Moore  v.  Fuller,  6  Or.  272. 

]Mortgage  by  a  woman  of  her  separate  property  for  hus- 
band's debt  may  be  enforced:  Id. 

Deed,  absolute  on  its  face,  may  be  shown  by  parol  to  have 
been  intended  as  a  mortgage:  Hurford  v.  Harned,  6  Or. 
362;  Stephens  v.  Allen,  11  Or.  188;  Albany  and  Santiam 
W.  D.  Co.  V.  Crawford,  11  Or.  243;  Wilhelm  v.  Wood- 
cock, 11  Or.  518;  Miller  v.  Ansenig,  2  W.  T.  22. 

Mortgage  to  secure  future  advances  is  valid:  Hendrix  v. 
Gore,  8  Or.  407;  Nicklin  v.  Betts  Spring  Co.,  11  Or. 
406. 

Act  of  1882,  providing  for  the  taxation  of  mortgages,  is 
constitutional:  Mumford  v.  Sewall,  11  Or.  67;  Crawford 
v.  Linn  County,  11  Or.  482. 

Principles  and  evidence  upon  which  a  deed  is  construed 
as  a  mortgage:  Stephens  v.  Allen,  11  Or.  188;  Albany 


404  Mortgages. 

Mortgages  (continued). 

and  Santiam  W.  D.  Co.  v.  Crawford,  11  Or.  243;  Wilhelm 
V.  Woodcock,  11  Or.  518. 

Evidence  to  prove  a  deed,  absolute  on  its  face,  a  mortgage, 
should  be  clear  and  satisfactory:  Albany  and  Santiam 
W.  D.  Co.  V.  Crawford,  11  Or.  243;  Wilhelm  v.  Wood- 
cock, 11  Or.  518. 

Contract  construed  and  held  a  mortgage,  and  amount  due 
determined  from  the  evidence:  Manaudas  v.  Heilner, 
12  Or.  335. 

Mortgage,  though  but  a  securit}^  is  a  conveyance  within 
the  registry  acts:  Fleschner  v.  Sumpter,  12  Or.  161; 
Watson  V.  Dundee  M.  &  T.  I.  Co.,  12  Or.  474. 

Merely  taking  deed  absolute,  intended  as  a  mortgage, 
where  there  is  no  concealment,  is  not  fraud  on  the 
mortgagor's  creditors:  Haseltine  v.  Espey,  13  Or.  301. 

Statute  of  Washington  Territory,  relating  to  mortgages,  is 
taken  from  Indiana,  and  differs  from  statutes  in  Cali- 
fornia and  New  York:  Hays  v.  Miller,  1  W.  T.  143. 

Agreement  for  sale  of  land  and  execution  of  a  deed  upon 
the  vendee  paying  certain  taxes  and  certain  other  sums 
in  installments,  and  on  failure  to  pay  any  installment 
the  whole  to  become  due,  construed  as  an  equitable 
mortgage:  Wood  v.  Mastick,  2  W.  T.  64. 

Whether  a  parol  contract  can  be  set  up  to  show  that  note, 
secured  by  mortgage  absolute  on  its  face,'  was  condi- 
tional, to  be  void  on  failure  of  payee  to  execute  a  deed, 
qusere:  Kenworthy  v.  Merritt,  2  W.  T.  155. 
2.    Foreclosure  and  Redemption. 

Wife  holding  legal  title  is  necessary  party;  and  in  suit  to 
foreclose  husband's  mortgage  on  her  property  is  not  es- 
topped by  silence  or  notice,  to  claim  her  rights,  not  hav- 
ing been  made  a  party:  Fahie  v.  Pressey,  2  Or.  23. 

Decree  in  foreclosure  under  the  Oregon  statute;  its  nature 
as  regards  subsequent  lienors  made  parties:  Chavener 
V.  Wood,  2  Or.  182. 

Plaintiff  in  execution  becoming  purchaser  extinguishes 
his  specific  lien:  Id. 

Who  may  redeem,  and  upon  what  terms:  Id,;  Abraham 
V.  Cheiioweth,  9  Or.  348;  Sellwood  v.  Gray  and  De 
Lashmutt,  11  Or.  535;  Parker  v.  Dacres,  2  W.  T.  439. 

Does  not  bind  encumbrancer  not  made  a  party;  junior 


Mortgages.  405 

Mortgages  (continued). 

and  subsequent  lienors  proper  parties:  Besser  v.  Haw- 
thorne, 3  Or.  129;  S.  C,  3  Or.  512;  Sellwood  v.  Gray 
and  De  Lashmutt,  11  Or.  534. 

Equity  of  redemption  defined;  cannot  be  cut  oflf  except  by 
decree  or  conveyance  by  mortgagor:  Id. 

Statute  defining,  does  not  create  equity  of  redemption; 
simply  defines  mode  of  exercise:  Id. 

Equity  of  redemption  cannot  be  divested  by  suit  to  which 

.    one  having  alien  is  a  stranger:  Id. 

Mortgagee,  not  made  party,  need  not  redeem,  but  may 
foreclose  as  if  no  sale  made:  Id. 

Former  rule,  that  party  not  served  was,  in  the  absence  of 
fraud,  bound  by  the  account,  does  not  cut  off  the  right 
to  redeem:  Id. 

On  foreclosure  of  junior  mortgage,  proceeds,  how  applied: 
Id. 

A  junior  mortgagee  taking  a  lease  of  the  premises  from  a 
mortgagee,  not  necessarily  estopped  to  set  up  his  right 
to  redeem:  Atkinson  v.  Morrissy,  3  Or.  332. 

Mortgagor  redeeming  must  tender  debt,  except  where  suit 
necessary  to  fix  amount:  Id. 

Equity  will  assume  jurisdiction  where  the  question  of 
right  to  redeem  is  in  controversy:  Id. 

Mortgagee  having  made  improvements,  the  mortgagor 
having  agreed  to  pay  therefor,  such  improvements  were 
added  to  the  sum  due:  Id. 

Defendant  refusing  to  accept  money,  on  ground  that  plain- 
tiff had  no  right  to  redeem,  tender  is  unnecessary:  Id. 

Foreclosure  suit  is  not  a  suit  to  determine  interests  in  real 
property,  within  section  378  of  the  Code  (sec.  382,  Hill's 
A.  L.),  and  is  not  affected  by  statute  of  limitations  re- 
garding such  suits:  Anderson  v.  Baxter,  4  Or.  105. 

It  is  a  mere  collection  of  a  debt,  and  does  not  involve  trial 
of  title:   Id. 

Absence  of  mortgagor  from  the  state  does  not  prevent 
statute  from  running  on  right  to  foreclose:  Id. 

^lortgagee  in  possession  occupies  no  more  favorable  posi- 
,  tiou  than  if  out:  Id. 

Sale  on  execution,  without  foreclosing  mortgage  given  to 
secure  the  debt,  is  not  void,  and  is  not  subject  to  col- 
lateral attack:  Mathews  v.  Eddy,  4  Or.  225. 


406  Mortgages. 

Mortgages  (continued). 

Mortgage  may  be  foreclosed,  although  the  notes  are  barred 
by  statute  of  limitations:  Myer  v.  Beal,  5  Or.  130. 

No  defense  in  foreclosing  mortgage  on  minor's  property 
that  guardian's  name  is  signed  to  the  note  and  mort- 
gage, and  not  minor's:  Trutch  v.    Bunnell,  5  Or.  504. 

Foreclosure  of  mortgage  in  suit  by  school  land  commis- 
sioners, the  district  attorney  is  entitled  to  prosecute, 
though  other  counsel  may  be  employed  to  assist:  Claim 
of  Ison,  6  Or.  465. 

Heirs  are  necessary  parties  defendant  in  foreclosure-suit 
against  executors:  Renshaw  v.  Taylor,  7  Or.  315. 

Liability,  on  foreclosure,  when  new  agreement  has  been 
substituted,  leaving  the  old  mortgage  as  security,  is  de- 
termined by  the  new  agreement:  Id. 

Decree  of  foreclosure  against  an  estate  void  if  heirs  are 
not  made  parties:  Id. 

Defendant  denying  the  amount  alleged  to  be  due  and  al- 
leging payment  need  not  plead  the  payment  as  a 
counterclaim:  Hendrix  v.  Gore,  8  Or.  406. 

On  foreclosure  of  wife's  mortgage  after  her  death,  one  who 
has  purchased  the  interest  of  her  children,  redeeming, 
holds  as  against  a  claim  of  husband  to  curtesy:  Abra- 
ham V.  Chenoweth,  9  Or.  348. 

Demurrer  will  not  lie  to  complaint  for  describing  land  by 
reference  to  natural  objects,  apparently  including  a 
definite  tract:  Ladd  and  Tilton  v.  Mason,  10  Or.  308. 

Mortgagor  is  entitled  to  answer  the  affirmative  matter  al- 
leged in  the  answers  of  co-defendants  who  claim  liens  in 
their  favor:  Id. 

No  order  of  interpleader  in  such  case  is  necessary,  and 
answer  filed  may  not  be  disregarded:  Id. 

On  foreclosure  by  mortgagee  of  mortgage  securing  several 
notes  due  him,  surety  on  one  of  the  notes  cannot  com- 
pel pro  rata  application  of  proceeds  to- all  the  notes: 
Wilson  V.  Allen  and  Lewis,  11  Or.  154. 

The  amount  that  subsequent  creditor  not  made  a  party  to 
the  foreclosure  must  pay  to  redeem  is  the  amount  due 
prior  encumbrancer  at  time  of  sale,  not  merely  the  sum 
bid  at  the  sale:  Sellwood  v.  Gray  and  De  Lashmutt,  11 
Or.  534. 

But  otherwise,  where  some  one  who  was  equitably  bound 
has  paid  the  balance  oyer  the  bid:  Id. 


Mortgages.  ^^* 

Mortgages  (continued). 

In  a  foreclosure  against  joint  makers,  the  court  cannot  de- 
termine a  controversy  as  to  which  was  surety  or  prmci- 
pal:  Ilovendcn  v.  Knott,  12  Or.  267. 
An  assignee  of  a  mortgage  taken  in  the  name  of  the  as- 
signor who  was  a  trustee  for  the  assignee  is  bound  by  a 
default  of  the  assignor  in  a  suit  to  foreclose  a  prior  lien: 
Watson  V.  Dundee  M.  &  T.  I.  Co.,  12  Or.  474. 
Statute  preventing  concurrent  action  for  debt  and  fore- 
closure  is  in  derogation   of  common   law,  and  to  be 
strictly  construed:  Hays  v.  Miller,  1  W.  T.  143. 
The  object  was  to  avoid  multiplicity  of  suits,  and  accom- 
plish both  in  one  suit:  Id. 
When  judgment  is  unsatisfied  by  sale  of  the  mortgaged 
property,  sheriff  must  proceed  at  once  under  copy  of 
order  of  sale  to  levy  on  and  sell  such  further  property 
of  debtor  subject  to  execution  as  will  satisfy  the  judg- 
ment: Id. 
When  the  whole  amount  of  the  debt  is  due,  judgment  may 
be  rendered  therefor  besides  decreeing  foreclosure,  to 
have  the  same  effect  as  a  lien  as  other  judgments,  dif-^ 
fering  only  in  the  manner  of  being  satisfied:  Id. 
Simple  decree  of  foreclosure  is  no  lien  on  property  outside 

the  mortgage:  Id. 
Such  decree  cannot  be  amended  nunc  pro  tunc,  to  give  per- 
sonal judgment  for  the  debt,  to  the  prejudice  of  other 
lien-holders  on  the  property  of  the  debtor:  Id. 
A  decree  of  foreclosure  obtained  by  fraud  and  collusion, 
for  the  purpose  of  cutting  off  the  rights  of  a  third  per- 
son, being  a  sham,  concludes  no  one,  and  no  rights  are 
determined  thereby:  Connoly  v.  Cunningham,  2  W.  T. 

242. 

Right  to  redeem  applies  only  to  property  sold  on  execu- 
lion;  not  to  that  sold  on  foreclosure:  Parker  v.  Dacres, 
2  W.  T.  439. 

No  equity  of  redemption  in  the  mortgagor,  since  the  legal 
title  does  not  pass  from  him  under  the  mortgage:  Id. 

Sale  on  foreclosure  is  absolute,  unless  court  makes  provis- 
ion in  decree  for  redemption  by  mortgagor:  Id. 

Suit  to  redeem  property  sold  on  foreclosure  is  not  governed 
by  statute  of  limitations  concerning  suits  relating  to 
real  property,  but  is  barred  in  two  years  under  section 
33  of  the  Code:  Id. 


408  Mortgages. 

Mc i-tgages  (continued). 

3.    Priority  and  Rights  of  Parties. 

Subsequent  recorded  mortgage  has  priority  over  former 
one  unrecorded:  Moore  v.  Thomas,  1  Or.  201. 

Subsequent  lienors  do  not  have  priority  over  unrecorded 
mortgage  when  they  are  charged  with  the  same  notice 
the  owner  of  the  fee  has,  and  he  is  estopped  by  recitals 
in  his  deed  from  denying:  Holmes  v.  Ferguson,  1  Or. 
220. 

Subsequent  recorded  mortgage  entitled  to  priority  over 
equitable  mortgage,  in  absence  of  notice  in  fact:  Chav- 
ener  v.  Wood,  2  Or.  182. 

Mortgagor  retains  right  of  possession,  and  the  legal  title: 
Besser  v.  Hawthorne,  3  Or.  129;  S.  C,  3  Or.  512. 

Lien  of  senior  mortgagee,  merged  in  the  legal  title  when 
he  buys  on  foreclosure:  Id.;  De  Lashmutt  v.  Sellwood, 
10  Or.  319. 

But  when  the  intention  is  clear,  the  legal  and  equitable 
titles  may  be  held  separate:  Id. 

Proceeds  applied,  first,  to  prior  mortgage;  second,  junior; 
third,  holder  of  the  legal  title:  Id. 

Taking  of  mortgage  is  a  waiver  of  vendor's  lien:  Pease  v. 
Kelly,  3  Or.  417. 

Mortgagee  in  possession  with  the  consent  of  the  mort- 
gagor, after  default  of  the  latter,  may  remain  until  debt 
is  paid,  and  is  not  liable  to  ejectment:  Roberts  v.  Suth- 
erlin,  4  Or.  219. 

Mortgage  is  incident  to  the  debt,  and  a  transfer  of  the 
note,  if  one  exists,  is  necessary  to  carry  the  mortgage: 
Id. 

Mortgagee  in  possession  is  entitled  to  allowance  for  neces- 
sary repairs,  in  his  account  of  profits:  Adkins  v.  Lewis, 
5  Or.  292. 

When  grantee  of  mortgage  absolute  on  its  face  conveys  to 
bona  fide  purchaser,  he  cannot  deny  mortgagor's  title  in 
suit  by  mortgagor  to  recover  value  of  the  property:  Id. 

Accounting  between  such  mortgagor  and  mortgagee:  Id. 

Minors  are  not  adversary  parties  in  proceeding  before 
County  Court  by  guardian  for  leave  to  mortgage  real 
property  of  minors:  Trutch  v.  Bunnell,  5  Or.  504. 
But  see  11  Or.  58. 

Married  woman,  having  mortgaged  her  separate  property 


Mortgages.  409 

Mortgages  (continued). 

for  husband's  debt,  must  show  the  mortgagee  was  party 
to  the  fraud,  to  avoid  the  mortgage:  Moore  v.  Fuller, 
6  Or.  272. 

Purchaser  is  not  personally  liable  to  pay  the  debt,  unless 
he  assumes  the  mortgage:  Walker  v.  Goldsmith,  7  Or. 
161. 

But  when  he  assumes  the  mortgage  as  part  consideration, 
he  is  personally  liable  in  the  first  instance:  Id. 

■Forbearance  or  neglect  by  creditor  to  sell  property  pledged 
releases  surety  when  the  contract  requires  diligence  in 
the  sale  of  the  property  pledged:  Id. 

The  taking  of  a  mortgage  for  the  debt  waives  mechanic's 
lien  on  same  property:  Trullinger  v.  Kofoed,  7  Or. 
228. 

Liability  when  new  agreement  has  been  substituted,  leav- 
ing the  old  mortgage  as  security,  is  determined  by  the 
new  agreement:  Renshaw  v.  Taylor,  7  Or.  315. 

Mortgagee  in  possession,  when  sued  for  mesne  profits, 
cannot  claim  his  possession  was  unlawful:  Id. 

Liability  of  broker  lending  money  on  second  mortgage, 
insufficient  as  security,  is  discharged  by  principal  sign- 
ing composition  agreement,  releasing  borrower:  Nicolai 
V.  Lyon,  8  Or.  56. 

Damages  recoverable  from  county  clerk,  for  failure  to 
record  a  mortgage:  Howe  v.  Taylor,  9  Or.  288. 

Mortgagee  of  the  interest  of  one  co-tenant,  on  partition 
acquires  lien  on  the  mortgagor's  allotted  portion: 
Board  S.  L.  Com.  v.  Wiley  and  Davis,  10  Or.  86. 

Mortgagee  in  possession  by  virtue  of  foreclosure  and 
sheriff's  deed  is  not  in  the  position  of  one  in  possession 
with  consent  of  mortgagor,  until  debt  is  paid:  De  Lash- 
mutt  V.  Sellwood,  10  Or.  319. 

Such  mortgagee  has  no  right  of  possession  as  against 
purchaser  under  a  junior  judgment  lien,  where  the 
judgment  creditor  was  not  made  a  party  to  the  fore- 
closure:   Id. 

Where  the  junior  lien-holder  is  not  made  a  party  to  the 

,  foreclosure  of  a  prior  mortgage,  the  purchaser  under  the 

foreclosure  sale  acquires  the  same  position  as  an  assignee 

of  the  mortgage,  and  is  in  effect  a  mere  successor  to  the 

interest  of  the  mortgagee  foreclosing:  Id. 


410  Mortgages. 

Mortgages  (continued). 

On  foreclosure,  mortgagee  purchasing  acquires  legal  title, 
and  mortgage  is  merged:  Id. 

Subsequent  foreclosing  of  junior  lien  does  not  give  mere 
right  to  redeem,  but  to  sell  the  legal  title:  Id. 

Purchaser  is  not  affected  by  subsequent  proceedings  in 
bankruptcy  against  mortgagor:  Id. 

Mortgagee  in  possession  under  deed  absolute  on  its  face 
must  tender  conveyance  before  suing  for  the  debt:  Wol- 
cott  V.  Madden,  10  Or.  370. 

Mortgage  properly  acknowledged  has  priority  over  a  deed 
of  same  date,  recorded  at  same  time,  but  not  entitled  to 
record:  Fleschner  v.  Sumpter,  12  Or.  161. 

Mortgage  stands  on  same  footing  with  deed  with  respect 
to  recording:  Watson  v.  Dundee  M.  &  T.  I.  Co.,  12  Or. 
474. 

Assignment  of  mortgage,  though  not  recorded,  protects 
assignee  against  subsequent  lienors:  Id. 

Assignments  of  mortgages  need  not  be  recorded,  and  need 
not  be  by  formal  conveyance:  Id. 

Purchaser  at  foreclosure  acquires  the  interest  of  the  mort- 
gagee, and  so  much  of  the  equity  of  redemption  as  is  not 
bound  by  junior  liens:  Id. 

There  is  no  merger  of  the  estates  in  the  purchaser  on  fore- 
closure, where  he  has  an  interest  in  keeping  them  dis- 
tinct, or  there  is  an  intervening  interest  outstanding:  Id. 

Recording  a  deed,  intended  as  a  mortgage,  in  the  record 
of  deeds,  is  sufficient  notice  of  grantee's  claim:  Hasel- 
tine  V.  Espey,  13  Or.  301. 

Semhle,  that  such  instrument  could  not  properly  be  re- 
corded as  a  mortgage:  Id. 

Evidence  reviewed,  and  held  not  to  warrant  allowing  mort- 
gagee in  possession  compensation  for  managing:  Hol- 
laday  v.  Holladay,  13  Or.  523. 

Where  one  has  given  a  bond  for  a  deed,  and  subsequently 
he  mortgages  the  land  to  another,  the  mortgage  transfers 
a  security  for  tlie  payment  of  the  purchase  price  under 
the  bond,  to  the  extent  of  the  mortgage:  Burkhart  v. 
Howard,  14  Or.  39. 

The  assignee  of  the  vendee's  note  after  maturity,  in  such 
case,  acquires  no  greater  right  than  his  assignor  as 
against  such  mortgagee,  although  the  mortgage  was  not 
recorded  until  after  the  assignment:  Id. 


Municipal  Corporations.  411 

Mortgages  (continued). 

If  a  written  instrument  constitute  both  a  note  and  a  mort- 
gage, the  holder  at  his  option  may  recover  on  the  note, 
or  proceed  to  foreclose:  Frank  v.  Pickle,  2  W.  T.  55. 
Under  a  contract  to  sell  land  and  execute  deed,  which  is 
construed  as  an  equitable  mortgage,  vendee  may,  on  fail- 
ure of  vendee  to  pay  as  agreed,  foreclose  against  all  his 
rights  in  the  property:  Wood  v.  ^Mastick,  2  W.  T.  64. 
Vendor  in  such  case  has  option  of  foreclosing  or  tendering 

deed,  and  suing  for  purchase  price:  Id. 
Under  a  sham  decree  of  foreclosure,  fraudulently  and  col- 
lusively  obtained  for  the  purpose  of  cutting  off  the  rights 
of  a  third  party,  no  rights  are  gained:  Connoly  v.  Cun- 
ningham, 2  AV.  T.  242. 
Motions.     See  Pleading;  Practice. 
Multifariousness.     See  Equity. 

Municipal  Corporations.  See  Constitutional  Law;  Elec- 
tions; Highways;  Master  and  Servant;  Negligence; 
Statutes. 

1.  Powers,  and  their  Exercise. 

2.  Liabilities. 

3.  Officers  and  Agents. 

4.  Streets,  and  Street  Assessments. 

5.  Actions  and  Suits. 

1.   Powers,  and  their  Exercise. 

Under  power  to  license  brokers,  etc.,  no  authority  to 
license  the  "  sale  of  bills  of  exchange,"  where  the  busi- 
ness is  carried  on  by  persons  for  themselves,  and  with 
their  own  funds:  Portland  v.  O'Neill,  1  Or.  218. 

After  assessment  is  made,  and  the  tax  is  levied  thereon, 
the  city  cannot  order  additional  assessment  of  property 
subsequently  coming  within  the  city:  Or.  Steam  Nav. 
Co.  V.  Portland,  2  Or.  81. 

Persons  not  previously  assessed,  who  subsequent  to  the 
levy  commence  to  deal  in  goods,  may  be  assessed:  Id. 

Charter  of  Corvallis  not  having  given  it  power  to  try  con- 
test of  municipal  election,  it  has  not  that  power:  Rob- 
ertson V.  Groves  and  Corvallis,  4  Or.  210. 

Statutes  creating  municipal  corporations  are  to  be  strictly 
construed:  Id.;  Corvallis  v.  Carlile,  10  Or.  139;  Bur- 
meister  v.  Howard,  1  W.  T.  207. 

The  i^ower  to  try  contest  is  not  implied  from  the  right  to 
provide  for  election  of  officers:  Id. 


412  MuxiriPAL  Corporations. 

Municipal  Corporations  (continued). 

Effect  of  limitation  in  Salem  charter  of  municipal  indebt- 
edness to  one  thousand  dollars:  Salem  Water  Co.  v. 
Salem,  5  Or.  29. 

Ordinance  to  pay  seventeen  hundred  dollars  per  annum 
for  seventeen  years,  without  providing  means  of  pay- 
ment, void:  Id. 

A  devise  that  would  be  valid  to  a  town  is  valid  if  made 
to  trustees  in  perpetuity  for  the  town:  Brown  v.  Brown, 
7  Or.  285. 

A  city  is  capable  of  becoming  beneficiary  of  a  trust  in 
perpetuity:  Id. 

City  need  not  resort  to  equity  to  annul  a  contract  rendsred 
void  by  the  employment  of  Chinese  on  public  works, 
contrary  to  the  express  stipulations  of  the  contract: 
Portland  v.  Baker,  8  Or.  356. 

Jurisdiction  of  a  municipal  body  under  its  charter  to 
judge  of  the  election  of  its  members  is  not  exclusive, 
and  Circuit  Court  will  entertain  proceedings  under  sec- 
tion 354  of  the  Code:  State  v.  McKinnon,  8  Or.  493. 

Charter  provision  giving  trustees  "  power  and  authority  " 
to  repair  streets,  construed  duty  and  obligation:  Ran- 
kin V.  Bucknian,  9  Or.  253. 

A  city  can  exercise  no  powers  not  expressly  conferred  or 
necessarily  implied:  Corvallis  v.  Carlile,  10  Or.  139; 
Portland  v.  Schmidt,  13  Or.  17;  Hawthorne  v.  Port- 
land, 13  Or.  271. 

Power  to  legislate  to  "  secure  the  peace  of  the  city  "  does 
not  warrant  the  passage  of  an  ordinance  providing  for 
closing  stores  on  Sunday:  Id. 

Power  of  city  of  Portland  to  license  bar-rooms  and  drink- 
ing-shops:  Matter  of  Schneider,  11  Or.  288;  Portland  v. 
Schmidt,  13  Or.  17. 

Validity  of  ordinance  licensing  bar-rooms,  under  charter 
power  to  license,  tax,  regulate,  and  restrain:  Portland  v. 
Schmidt,  13  Or.  17. 

Power  of  city  of  East  Portland  to  raise  assessments,  on 
assessment  roll  of  property  within  the  city,  obtained 
from  county  assessment  roll:  Dalton  v.  Portland,  11 
Or.  42G. 

Clause  in  a  void  ordinance  repealing  prior  ordinances  in 
conflict  does  not  operate  to  repeal  any  ordinance  con- 


Municipal  Corporations.  413 

Municipal  Corporations  (continued). 

flicting  with  the  void  provisions:  Portland  v.  Schmidt, 

13  Or.  17. 

When  an  express  power  is  granted,  the  power  necessary 
to  carry  it  into  execution  is  implied:  Id. 

Power  to  license,  regulate,  tax,  and  restrain  drinking- 
shops  implies  necessary  power  to  effectuate  the  object, 
but  not  to  prohibit  absolutely:  Id. 

But  may  include  power  to  prohibit,  if  license  fee  is  not 
paid:  Id. 

•Title  of  ordinance  may  be  resorted  to,  to  ascertain  inten- 
tion of  council:  Id. 

City  of  Portland  cannot  declare  violation  of  a  city  ordi- 
nance a  misdemeanor:  Id. 

Power  to  improve  streets,  and  tax  the  cost  thereof,  and 
sell  real  property  for  delinquent  taxes,  is  statutory,  and 
must  be  strictly  pursued:  Dowell  v.  Portland,  13  Or. 
248;  Hawthorne  v.  Portland,  13  Or.  271. 

The  exercise  of  such  power  is  not  an  adjudication  or  the 
exercise  of  jurisdiction  in  a  judicial  sense:  Id. 

City  of  Astoria  has  power  to  suppress  and  prohibit  bawdy- 
houses,  and  to  punish  violation  of  the  ordinance:  Wong 
V.  Astoria,  13  Or.  538. 

City  has  power  to  punish,  under  the  provisions  of  charter, 
for  an  offense,  though  the  same  be  punishable  under 
state  law,  and  criminal  in  its  nature:  State  v.  Sly,  4  Or. 
277;  State  v.  Bergman,  6  Or.  341;  Wong  v.  Astoria,  13 
Or.  538. 

Power  under  charter  to  prevent  and  restrain  riots,  noise, 
disturbance,  etc.,  on  the  streets,  does  not  authorize  city 
to  punish  for  assault  with  dangerous  weapon:  Walsh 
V.  Union,  13  Or.  589. 

Power  to  improve,  lay  out,  or  establish  streets  must  be 
strictly  followed:  N.  P.  L.  &  M.  Co.  v.  East  Portland, 

14  Or.  3;  N.  P.  T.  Co.  v.  Portland,  14  Or.  24. 
Legislature  may  provide  for  city  water  supply  by  direct 

act,  without  submitting  the  matter  to  vote  of  the  people 
of  the  city:  David  v.  Portland  Water  Co.,  14  Or.  98. 
Supply  of  pure  water  to  the  metropolis  of  the  state  is  a 
.  matter  of  public  moment,  as  distinguished  from  private 
municipal  affairs,  and  so  is  within  the  province  of  the 
legislature:  Id. 


414  Municipal  Corporations. 

Municipal  Corporations  (continued). 

Amendment  to  charter, conferring  additional  powers,  but 
not  clianging  existing  provisions,  is  not  within  article 
4,  section  22,  of  the  constitution,  and  need  not  set  forth 
the  full  act:  Id.;  Sheridan  v.  Salem,  14  Or.  328. 

Act  of  1885,  providing  for  licensing  liquor  dealers,  has  the 
effect  of  amending  charter  of  Astoria,  the  power  to 
license  having  been  already  granted  to  that  city  by  char- 
ter, and  is  void  as  not  complying  with  the  constitutional 
provisions  regarding  amendments:  State  v.  Wright,  14 
Or.  365. 

Powers  are  to  be  strictly  construed,  but  within  their  au- 
thority their  ordinances  have  the  effect  of  statutes: 
Burmeister  v.  Howard,  1  W.  T.  207. 

Seattle  was  incorporated  under  special  act,  which,  whether 
within  the  legislative  power  or  not,  was  subsequently 
ratified  by  act  of  Congress:  Seattle  v.  Yesler,  1  W.  T. 
571. 

The  legislative  grant  of  power  to  said  city  is  within  sec- 
tion 1924,  Revised  Statutes  of  the  United  States:  Id. 

Town  may  make  assessments  for  local  improvements  a 
lien  on  property  benefited,  but  cannot  make  the  tax 
a  personal  charge:  Id. 

Act  to  incorporate  Olympia,  1883,  empowering  the  city 
to  license,  regulate,  and  restrain  drinking-saloons,  re- 
pealed the  act  of  1873,  limiting  its  powers  in  those 
respects:  Hadlan  v.  Olympia,  2  W.  T.  340. 

Whether  the  amount  of  the  license,  three  hundred  dollars, 
fixed  by  the  city,  exceeded  its  police  powers  is  ques- 
tioned: Id. 
2.   Liabilities. 

City  of  Portland  is  not  liable  under  its  charter  for  injury 
to  a  person  by  defective  street:  O'Harra  v.  Portland,  3 
Or.  525. 

Notice,  actual  or  implied,  must  be  alleged  and  proved  to 
hold  a  city  liable  for  such  injury:  Mack  v.  Salem,  G 
Or.  275. 

Liabihty  on  contract  for  street  improvement  is  not  con- 
fined to  funds  realized  from  assessment  on  abutting 
property,  unless  so  provided  in  the  contract:  Frush  v. 
Portland,  G  Or.  281. 

Charter  provision  exempting  city  from  liability,  but  not 


Municipal  Corporations.  415 

Municipal  Corporations  (continued). 

exonerating  officers  from  liability  for  willful  neglect, 
held  to  render  trustees  liable  for  injury  by  non-repair 
of  bridge:  Rankin  v.  Buckman,  9  Or.  253. 

In  such  case,  lack  of  funds  is  matter  of  defense,  and  need 
not  be  anticipated  by  the  complaint:  Id. 

City  liable  for  damages  for  injuries  received  on  defective 
walk,  though  the  claim  was  not  first  presented  to  the 
council,  which  has  by  its  charter  to  pass  upon  claims 
against  the  city:  Sheridan  v.  Salem,  14  Or.  328. 

Unless  exempted  from  liability  by  its  charter,  city  is  lia- 
ble under  section  347  of  the  Code  (sec.  350,  Hill's  A.  L.) 
for  injuries  received  in  consequence  of  neglect  of  oflficers 
to  keep  streets  in  repair:  Id. 

This  rule  criticised,  but  adhered  to  on  the  principle  of 
stare  decisis:  Id. 

City  is  liable  to  abutting  lot-owner  for  injury  to  his  lot 
by  negligence  in  improvement  of  street  by  contractor 
working  under  supervision  of  the  city  surveyor:  Seattle 
V.  Buzby,  2  W.  T.  25. 

In  such  case,  contractor  is  servant  of  the  city,  and  the  rule 
of  respondeat  superior  applies:  Id. 

City  is  liable  for  injury  resulting  from  neglect  to  repair 
sidewalks,  following  the  decisions  of  the  United  States 
Supreme  Court:  Hutchinson  v.  Olympia,  2  W.  T.  314. 
3.   Officers  and  Agents. 

Rules  of  order  adopted  by  common  council  are  binding  on 
that  body:  State  v.  Hoyt,  2  Or.  246. 

Offices  of  councilman  and  marshal  are  incompatible,  and 
cannot  be  held  by  same  person:  Id. 

City  recorder  ex  officio  justice  of  the  peace  within  the  city 
limits:  Ryan  v.  Harris,  2  Or.  175;  Craig  v.  Mosier,  2 
Or.  323;  Sellers  v.  Corvallis,  5  Or.  273. 

Jur4sdiction,  powers,  and  salary  of  police  judge:  State  v. 
Wiley,  4  Or.  184;  Portland  v.  Denny,  5  Or.  160;  Adams 
V.  Multnomah  Co.,  6  Or.  116. 

Legislature  may  fix  compensation  of  officers  of  city  by 
charter  or  amendment  thereto,  and  the  method  and 
source  of  payment:  Adams  v.  Multnomah  Co.,  6  Or. 
116. 

Public  officers  given  power  and  authority  to  do  an  act  are 
bound  to  perform  it:  Rankin  v.  Buckman,  9  Or.  253. 


416  Municipal  Corporations. 

Municipal  Corporations  (continued). 

Chief  of  police,  acting  as  constable,  cannot  retain  the  fees 
earned:  Portland  v.  Besser,  10  Or.  242. 

Auditor  and  clerk  has  no  power  to  make  evidence  by  his 
certificate,  excepting  to  authenticate  by  his  certificate 
copies  of  records  of  which  the  law  makes  him  custo- 
dian: N.  P.  T.  Co.  V.  Portland,  14  Or.  24. 

"Water  committee,"  provided  by  act  amendatory  of  Port- 
land charter,  are  not  ofiicers  elected  or  appointed  under 
the  constitution,  and  need  not  take  oath  of  office:  David 
V.  Portland  Water  Co.,  14  Or.  98. 

Such  persons  are  not  "officers"  within  the  meaning  of  arti- 
cle 15,  section  2,  and  sections  6  and  7,  article  8,  of  the 
constitution,  regarding  terms  of  office:  Id. 
4.    Streets,  and  Street  Assessments. 

Assessment  on  adjacent  lots  for  their  share  for  street  im- 
provement is  in  the  nature  of  a  tax:  King  v.  Portland, 
2  Or.  146. 

Legislature  and  the  council  have  power  to  so  assess  ad- 
jacent lots,  and  courts  will  not  review  the  exercise  of 
the  discretionary  power  of  the  legislature  to  provide 
the  mode  of  assessment  for  such  expenses:  Id. 

Order  of  city  council  directing  a  street,  once  duly  dedi- 
cated, to  be  fenced  up  is  void:  Portland  v.  Whittle,  3 
Or.  126. 

City  of  Portland  is  exempted  from  liability  for  injury  to 
a  person  by  defects  in  street  by  its  charter:'  O'llarra  v. 
Portland,  3  Or.  525. 

Appeal  from  city  council  to  Circuit  Court  in  laying  out 
street  must  be  from  the  whole  judgment,  and  the  pro- 
ceeding is  tried  de  novo:  Portland  v.  Kamm,  5  Or.  362. 

Paramount  control  of  streets  and  highways  is  in  the  legis- 
lature: East  Portland  v.  Multnomah  County,  6  Or.  62; 
P.  &  W.  V.  R.  R.  Co.  V.  Portland,  14  Or.  188. 

State  may  transfer  its  control  thereof  within  a  city  to  the 
municipality:  Id. 

Notice  of  the  defect,  express  or  implied,  must  be  alleged 
and  proved  to  hold  city  liable  for  injury:  Mack  v.  City 
of  Salem,  6  Or.  275. 

Liability  on  contract  for  street  improvement  is  not  con- 
fined to  funds  realized  from  assessment  on  abutting 
property,  unless  so  provided  in  the  charter:  Frush  v. 
East  Portland,  6  Or.  281. 


Municipal  Corporations.  417 

Municipal  Corporations  (continued). 

Provision  in  charter,  that  proceedings  shall  be  presumed 
regular,  does  not  dispense  with  the  necessity  for  the 
record  showing  that  notice  has  been  given:  Van  Sant 
V.  Portland,  6  Or.  395. 

Notice  is  jurisdictional,  and  in  its  absence  from  the  record,, 
the  presumption  cannot  aid:  Id. 

Person  owning  a  building,  damaged  by  widening  streets, 
can  recover  for  improvements  put  thereon  after  the 
viewers  report,  and  before  the  adoption  of  the  report  by 

.  the  council:  Portland  v.  Lee  Sam,  7  Or.  397. 

Not  necessary  under  the  provisions  of  the  Portland  charter 
to  declare  sewer  necessary,  or  create  taxing  district,  be- 
fore proceeding  to  contract  for  building  a  sewer:  Strow- 
bridge  v.  Portland,  8  Or.  67. 

Provisions  in  charter  of  Portland  relating  to  streets  do 
not  apply  to  sewers:  Id. 

City  may  grade  street  at  the  approach  to  the  river  to 
facilitate  travel  or  landing  from  boats,  but  cannot  con- 
fer right  to  private  person  to  do  so  to  the  injury  of 
adjacent  lots:  Price  v.  Knott,  8  Or.  438. 

Adjacent  lot-owner  may  enjoin  person  threatening  to 
grade  down  a  street  to  the  permanent  injury  of  adjacent 
lots:  Id. 

Trustees  held  personally  liable  for  neglect  to  repair  streets,, 
where  under  the  charter  they  have  power  to  repair: 
Rankin  v.  Buckman,  9  Or.  253. 

Power  to  repair  imposes  a  duty  to  keep  streets  in  repair:; 
Id.;  Hutchinson  v.  Olympia,  2  W.  T.  314. 

Road  included  in  the  limits  of  a  city  by  the  legislature- 
does  not  thereby  become  a  street:  Heiple  v.  East  Port- 
land, 13  Or.  97. 

Road  is  a  public  highway;  street  is  a  road  in  a  city  or 
village:  Id. 

Use^and  improvement  by  a  city  of  a  road  within  the 
limits  of  the  city  is  not  sufficient  to  prove  acquiescence 
of  abutting  owners  in  its  use  as  a  street  for  statutory 
period:  Id. 

Facts  examined  and  held  not  to  show  intent  to  dedicate 
such  road  as  a  street:  Id. 

Charter  requiring  name  of  owner,  or  that  owner  is  un- 
known, to  be  stated  in  the  assessment  roll  in  assess^ 
Or.  Diq.— 27 


418  Municipal  Corpokations. 

Municipal  Corporations  (continued). 

ments  for  street  improvements,  an  assessment  to  the 
name  of  a  stranger  to  the  title  is  void:  Dowell  v.  Port- 
land, 13  Or.  248;  Hawthorne  v.  East  Portland,  13  Or. 
271. 

After  void  assessment  and  sale,  city  cannot  refund  pur- 
chase-money, reassess  and  sell  again;  its  power  is  ex- 
hausted in  the  first  proceeding:  Id. 

Purchaser  at  such  void  sale  takes  nothing,  and  cannot 
recover  back  his  money:  Id. 

In  the  absence  of  express  authority,  city  cannot  make  a 
valid  reassessment  to  cure  defects:  Id. 

Assessment  to  B.  F.  Dowell,  when  Fanny  Dowell  was 
owner,  is  void:  Id. 

So,  assessment  to  "J.  C.  Hawthorne,  Est.  of,"  although 
J.  C.  Hawthorne  was  dead  at  the  time:  Hawthorne  v. 
Portland,  13  Or.  271. 

Notice  of  street  improvement  must  state  definitely  the 
kind  of  improvement  proposed:  Id. 

Tax  for  street  improvement  is  not  against  the  person,  but 
the  property:  Seattle  v.  Yesler,  1  W.  T.  571. 

Effect  of  provision  in  charter  permitting  city  to  take  cer- 
tificate of  county  clerk  as  to  who  is  owner  for  the  pur- 
pose of  assessment:  Id. 

Party  encouraging  street  improvement  abutting  his  prop- 
erty is  estopped  to  deny  its  legality:  Id. 

Common  council  can  improve  street  only  upon  implied 
assent  of  abutting  property  owners,  and  must  strictly 
follow  the  method  indicated  in  its  charter:  N.  P.  L. 
&  M.  Co.  V.  East  Portland,  14  Or.  3;  N.  P.  T.  Co.  v.  Port- 
land, 14  Or.  24. 

City  cannot  undertake  to  pay  for  such  improvement  out 
of  its  general  funds,  but  may  become  liable  generally, 
upon  failure  to  strictly  comply  with  the  charter  method 
of  realizing  the  special  fund:  Id. 

City  cannot  modify  a  contract  for  street  improvement  pre- 
viously made:  Id. 

But  complaint  alleging  such  modification,  which  is  denied 
by  the  answer,  is  good  after  verdict:  Id. 

Where  six  months  have  elapsed  after  completion  of  a  con- 
tract, and  city  has  neither  approved  or  disapproved  of 
the  work,  as  provided  by  the  contract,  city  cannot  be 


Municipal  Corporations.  419 

Municipal  Corporations  (continued). 

heard  to  make  objection  that  it  has  not  yet  acted  thereon: 
Id. 

Qualification  of  viewers  must  appear  upon  the  record,  and 
neither  a  finding  by  the  council  or  the  affidavit  of  the 
viewers  will  supply  the  defect:  N.  P.  T.  Co.  v.  Portland, 
14  Or.  24. 

Provision  in  charter  that  proceedings  shall  be  deemed 
regular  until  contrary  is  shown  applies  only  to  proceed- 
ings had  after  jurisdiction  is  acquired:  Id. 
•  Grant  by  the  legislature  to  a  railroad  of  land  in  a  city, 
previously  dedicated  to  the  public  as  a  levee  for  depots 
and  docks,  held  not  inconsistent  with  the  dedication:  P. 
&  W.  V.  R.  R.  Co.  V.  Portland,  14  Or.  188. 

The  right  of  municipality  in  its  streets  and  public  prop- 
erty is  not  absolute;  the  property  is  public,  and  the  use 
thereof  is  within  the  control  of  the  legislature:  Id. 

But  the  legislature  cannot  divert  such  property  from  the 
dedication;  and  upon  such  diversion  any  person  inter- 
ested is  entitled  to  injunction  to  prevent  it:  Id. 

Board  of  trustees  of  Olympia  had  power  to  vacate  an  alley 
on  petition  of  all  the  abutting  property  owners:  Bur- 
meister  v.  Howard,  1  W.  T.  207. 

Upon  vacation  of  street  or  alley,  the  fee  to  the  soil  vests 
in  the  abutting  owners,  unless  other  disposition  is  made 
thereof  by  petition  of  all  abutting  owners:  Id. 

If  such  other  disposition  be  made,  the  lot-owners  are  es- 
topped from  setting  up  any  right  in  contravention 
thereof:  Id. 

Upon  replatting  a  block  and  alley,  upon  such  petition,  by 
city  ordinance,  the  lot-owners  are  estopped  from  ques- 
tioning rights  acquired  under  such  replatting:  Id. 

Boundaries  fixed  by  ordinance  in  such  replatting  cannot 
^e  subsequently  questioned,  and  all  parties  are  charged 
with  notice  of  the  ordinance:  Id. 

Town  in  Washington  Territory  may  make  assessments 
for  grading  street  a  lien  on  property  affected,  but  cannot 
make  the  tax  a  personal  charge:-  Seattle  v.  Yesler,  1 
W.  T.  572. 

The  word  "assessment"  in  the  Organic  Act  is  employed  in 
a  common  and  general  sense:  Id. 


420  Municipal  Corporations. 

Municipal  Corporations  (continued). 

Such  assessments  are  not  in  violation  of  the  provision  re- 
quiring equahty  and  uniformity  in  taxation:  Id. 

Town  making  assessments  for  street  improvement  must 
apportion  to  each  lot  its  share  of  the  whole  cost  in  pro- 
portion as  the  value  of  each  lot  to  the  whole:  Id. 

Municipality  must  fix  a  method  of  determining  such  pro- 
portion and  facts:  Id. 

The  assessment  in  this  case  in  neither  uniform  nor  in  ac- 
cordance with  the  value  of  the  property  taxed:  Id. 

The  ordinances  regulating  assessments  are  in  violation  of 
section  1924,  Revised  Statutes  of  the  United  States,  and 
void:  Id. 

Sidewalks  are  part  of  streets:  Hutchinson  v.  Olympia,  2 
W.  T.  314. 

Provision  in  charter  of  Olympia,  for  petition  of  majority 
of  property  owners,  or  two  thirds  vote  of  council,  ap- 
plies to  construction  of  sidewalks,  and  not  to  the  repair 
thereof:  Id. 
5.   Actions  and  Suits. 

Resident  and  tax-payer  not  competent  juror  in  damage 
suit  against  city:  Garrison  v.  Portland,  2  Or.  123. 

Nor  in  action  to  lay  out  street,  and  assess  damages  and 
benefits:  Portland  v.  Kamm,  5  Or.  362. 

Verdict  in  such  action  must  state  damages  and  benefits 
separately:  Id. 

Appeal  from  the  city  council  to  the  Circuit  Court  in  such 
action  is  from  the  whole  judgment,  and  the  proceeding 
is  tried  de  novo:  Id. 

Such  verdict  is  sufficient  if  the  amount  of  the  damages 
and  benefits  can  be  ascertained  therefrom:  Portland  v. 
Lee  Sam,  7  Or.  397. 

Corporation  as  plaintifi"  in  action  for  public  nuisance  must 
allege  and  prove  special  damage:  Roseburg  v.  Abra- 
ham, 8  Or.  509. 

Evidence  and  instructions  as  to  damages  and  benefits  in 
action  to  lay  out  street:  Portland  v.  Kamm,  10  Or.  383. 

In  pleading  city  ordinance  (prior  to  1885),  it  must  be  set 
out  in  cxtcnso  so  far  as  relied  on:  Pomeroy  v.  Lappeus, 
9  Or.  3G3;  Nodine  v.  Union,  13  Or.  587. 

In  an  action  for  damages  for  injury  sustained  upon  a  de- 
fective walk,  evidence  of  repairs  made  by  the  city  offi- 


Negligence.  421 

Municipal  Corporations  (continued). 

cers,  tliough  not  shown  to  be  by  order  of  the  council, 
may  go  to  the  jury  upon  the  question  whether  the  locus 
was  a  city  thoroughfare:  Sheridan  v.  Salem,  14  Or.  328. 
In  proceeding  to  abate  nuisance  in  one  of  its  streets,  city 
is  clothed  with  the  attributes  of  sovereignty,  and  may 
prosecute  its  suit  in  the  first  instance  by  bill  in  equity: 
Moore  v.  Walla  Walla,  2  W.  T.  184. 
On  defendant  demurring  in  such  suit  on  the  ground  that 
plaintiff  has  an  adequate  remedy  at  law,  if  the  demur- 
rer be  overruled,  plaintiff  must  demand  jury  trial,  or  he 
waives  the  objection:  Id. 

Murder.     See  Homicide. 

Mutual  Covenants.     See  Contracts;  Deeds. 

Naturalization. 

One  who  obtains  his  final  papers  becomes  a  voter  at  time 
of  naturalization:  Darragh  v.  Bird,  3  Or.  229. 

Navigable  Streams.     See  Water  and  Watercourses. 

Necessaries.     See  Husband  and  Wife. 

Negligence.     See  Damages;  Master  and  Servant;  Munici- 
pal Corporations;  Railroads. 

1.  Gener.\lly. 

2.  Pleading. 

3.  Evidence. 

4.  Contributory  Negligence. 
1.   Generally. 

Carrier  cannot  limit  his  liability  for  negligence  of  himself 
or  servants:  Seller  v.  Steamship  Pacific,  1  Or.  400. 

Surgeon  responsible  for  ordinary  skill;  what  is  ordinary 
skill:  Heath  v.  Glisan,  3  Or.  64;  Boydston  v.  Giltner, 
3  Or.  118;  Williams  v.  Poppleton,  3  Or.  139. 

Not  liable  for  error  in  judgment  in  case  of  doubt:  Id. 

Negligence  of  agent,  when  principal  liable  for  personal 

^injuries  inflicted:  Oliver  v.  N.  P.  T.  Co.,  3  Or.  84; 
French  v.  Cresswell,  18  Or.  418 

County  liable  for  negligence  of  supervisor  of  roads  in  not 
repairing  bridge:  McCalla  v.  Multnomah  County,  3  Or. 
424;  Ileilner  v.  Union  County,  7  Or.  83. 

Liability  of  county  for  injury  occasioned  by  defective 
,      bridge,  under  section  347  of  the  Code:  Id. 

City  of  Portland  is  not  liable,  under  its  charter,  for  injury 


422  Negligence. 

Negligence  (continued). 

occasioned  by  defective  streets:  O'Harra  v.  Portland,  3 

Or.  525. 
Employer  providing  and  controlling  machinery  is  bound 

to  see  that  it  is  suitable:  Stone  v.  Oregon  City  Mfg.  Co., 

4  Or.  52. 
If  employee  is  injured  by  defect  unknown  to  him,  which 

employer  might  have  cured  by  exercise  of  ordinary 

care,  employer  liable:  Id. 
Otherwise,  where  workman  knowingly  works  with  such 

defective  machinery:  Id. 
Railroad  train  not  bound  to  stop  on  seeing  a  man  walking 

on  the  track;  may  presume  he  will  get  out  of  the  way  on 

sounding  the  alurm:  Cogswell  v.  Oregon  and  California 

R.  R.  Co.,  6  Or.  417. 
Owner  of  a  steamboat  is  liable  for  injury  to  a  passenger 

landing  at  an  intermediate  point,  where  the  boat  stops 

before  reaching  his  destination:  Dice  v.  W.  T.  &  L.  Co., 

8  Or.  60. 

Liability  of  officers  of  a  city  for  neglect  to  repair  streets, 
where  city  is  exempt  by  charter:  Rankin  v.  Buckman, 

9  Or.  253. 

Of  railroad  company  in  negligently  constructing  and 
operating  a  ditch,  whereby  adjoining  lands  are  over- 
flowed: Davidson  v.  Oregon  and  California  R.  R.  Co.,  11 
Or.  136. 

When  negligence  causing  death  is  manslaughter:  State  v. 
Justus,  11  Or.  178. 

Rule  of  liability  of  master  for  negligence  of  fellow-ser- 
vants and  vice-principals:  Willis  v.  Oregon  R'y  &  Nav. 
Co.,  11  Or.  257. 

Foreman  of  a  gang  of  laborers  erecting  a  shed  under  the 
direction  of  a  superior  is  a  fellow-servant  with  the  other 
laborers:    Id. 

In  the  absence  of  statute  giving  railroad  company  power 
to  lease  the  road,  the  company  is  liable  for  the  torts  of 
the  lessee  tliereof:  Lakin  v.  R.  R.  Co.,  13  Or.  436. 

Negligence  of  a  construction  company,  occasioning  death, 
in  possession  of  and  operating  railroad  for  traffic  pur- 
poses, employed  by  the  owners  of  a  railroad,  renders 
the  owners  liable:  Id, 

Provision  in  city  charter  requiring  claims  to  be  presented 


Negligence.  423 

Negligence  (continued). 

to  and  audited  by  council  docs  not  apply  to  claim  for 
damages  for   injury  occasioned   by  neglect    to   repair 
street:  Sheridan  v.  Salem,  14  Or.  328. 
City  is  liable  under  section  347  of  the  Code  (sec.  350, 
Hill's  A.  L.),  for  such  injury,  unless  exempted  by  its 
charter:  Id. 
City  is  liable  to  the  owner  of  an  abutting  lot  for  injury 
thereto  by  negligence  of  contractor  in  improving  street, 
who  is  working  under  directions  of  city  surveyor:   Se- 
attle V.  Buzby,  2  W.  T.  25. 
The  contractor  is  the  servant  of  the  city  in  such  case,  and 

the  rule  respondent  svperior  applies:  Id. 
Following  the  decisions  of  the  United  States  Supreme 
Court,  a  city  is  liable  for  injury  occasioned  by  neglect 
to  keep  streets  in  repair:  Hutchinson  v.  Olympia,  2  W. 
T.  314. 
2.   Pleading. 

Statement  in  complaint  against  landlord  for  injuries  to  a 
person  occasioned  by  the  ill  repair  of  the  building,  that 
plaintifif  exercised  due  care,  is  insufficient;  plaintiff 
must  show  that  the  unsafe  condition  of  the  building  is 
not  his  fault:  Kahn  v.  Love,  3  Or.  206. 
In  an  action  against  a  city  for  injury  by  defective  side- 
walk, notice  of  the  defect,  express  or  implied,  must  be 
alleged:  Mack  v.  Salem,  6  Or.  275. 
So  in  an   action  against  a  county  for  injury  by  defective 

bridge:  Heilner  v.  Union  Co.,  7  Or.  83. 
Facts  constituting  the  negligence  must  be  alleged:  Id. 
Contributory   negligence   is    a   defense,    and   should    be 

averred  as  such:  Grant  v.  Baker,  12  Or.  329. 
To  recover  exemplary  damages,  the  complaint  must  show 
that  the  act  was  done  maliciously,  or  was  the  result 
of  willful  misconduct,  or  reckless  indifference  to  the 
rights  of  others:  Grant  v.  Baker,  12  Or.  329. 
3.   Evidence. 

Expert's  opinion  of  the  general  skillfulness  of  surgeon  not 

admissible;  otherwise  as  to  the  degree  of  skill  used  in 

the  operation:  Heath  v.  Glisan,  3  Or.  64;  Boydston  v. 

.  Giltner,  3  Or.  118:  Williams  v.  Poppleton,  3  Or.  130. 

Refracture  of  bone  by  surgeon  is  not  of  itself  proof  of  bad 

surgery:  Boydston  v.  Giltner,  3  Or.  118. 


424  Negligence. 

Nc^^ligence  (continued). 

But  if  done  with  gross  ignorance,  renders  surgeon  liable: 
Id. 

Reputation  for  skill  of  surgeon  not  admissible:  Williams 
V.  Poppleton,  3  Or.  139. 

The  making  of  a  quitclaim  deed  under  the  circumstances 
of  the  case  was  such  evidence  of  negligence  as  to  estop 
grantor  from  asserting  after-acquired  title:  Dorris  v. 
Smith,  7  Or.  267. 

Price  paid  is  no  evidence  of  value  of  horses  killed  on  rail- 
road: Holstine  v.  0.  &  C.  R.  R.  Co.,  8  Or.  163. 

In  action  for  injury  to  passenger,  evidence  of  former  acci- 
dent at  same  place  inadmissible:  Davis  v.  0.  &  C.  R.  R. 
Co.,  8  Or.  172. 

Burden  of  proof  is  on  the  party  charging  negligence: 
Walsh  v.  Or.  R'y  &  Nav.  Co.,  10  Or.  250. 

What  is  "ordinary  care"  depends  upon  the  particular  cir- 
cumstances: Id. 

When  negligence  is  presumed  as  a  proposition  of  law,  and 
when  to  be  left  to  the  jury:  Id. 

It  is  the  right  of  the  jury  to  weigh  the  evidence  of  negli- 
gence: Id. 

Plaintiff  need  not  prove  absence  of  contributory  negli- 
gence, in  action  for  injury  by  falling  off  an  elevated  un- 
guarded plank  road:  Grant  v.  Baker,  12  Or.  329. 

Narrations  of  the  circumstances  immediately  after  eject- 
ment from  a  train,  in  the  absence  of  defendant,  are  not 
admissible  as  part  of  the  res  gestse:  Sullivan  v.  Or.  R'y 
&  N.  Co.,  12  Or.  392., 

In  action  by  person  ejected  from  a  train,  he  must  prove 
not  who  was  owner,  but  who  was  using  the  train  at  the 
time:  Id. 

Evidence  that  city  oflScers  improved  the  sidewalk  at  dif- 
ferent times  may  go  to  the  jury  on  the  question  whether 
the  locus  is  a  municipal  thoroughfare:  Sheridan  v. 
Salem,  14  Or.  328. 

Duty  of  trainmen  to  have  greater  care  in  passing  a  place 
where  they  know  persons  are  accustomed  to  walk  on 
the  track:  Cassida  v.  0.  R.  &  N.  Co.,  14  Or.  551. 

Evidence  of  the  fact  that  persons  are  in  the  habit  of  travel- 
ing up  and  down  the  track  at  the  place  where  the  acci- 


Negligence.  425 

Negligence  (continued). 

dent  occurred  should  go  to  the  jury  on  the  question  of 
negligence:  Id. 

4.  CONTKIBUTORY  NEGLIGENCE. 

Slight  negligence  of  plaintiflF  will  not  excuse  gross  negli- 
gence in  the  defendant:  Bequette  v.  People's  Trans.  Co., 
2  Or.  200;  Ilolstine  v.  0.  &  C.  R.  R.  Co.,  8  Or.  1G3. 

Action  by  tenant  for  injury  from  defects  in  building; 
plaintiff  must  show  that  the  condition  of  the  building  is 
not  his  fault:  Kahn  v.  Love,  3  Or.  206. 

Plaintiff  suing  for  damages  must  not  have  been  guilty  of 
contributory  negligence:  Dufer  v.  Cully,  3  Or.  377. 

Person  employed  about  dangerous  machinery  bound  to 
use  his  thinking  faculties:  Stone  v.  Or.  City  Mfg.  Co.,  4 
Or.  52;  Hurst  v.  Burnside,  12  Or.  520. 

It  is  gross  negligence  for  a  deaf  person  to  walk  along  a 
railroad  track:  Cogswell  v.  Or.  &  C.  R.  R.  Co.,  6  Or.  417. 

Slight  negligence  will  not  prevent  recovery,  where  negli- 
gence complained  of  was  gross:  Holstine  v.  0.  &  C. 
R.  R.  Co.,  8  Or.  163. 

Drunkenness  of  the  plaintiff's  intestate,  unless  the  proxi- 
mate cause,  no  defense:  Davis  v.  0.  &  C.  R.  R.  Co.,  8 
Or.  172. 

Passenger  has  no  right  to  presume  ferry-boat  landed  when 
chain-guard  is  down,  when  notified  personally  other- 
wise: Id. 

Question  of  contributory  negligence  in  brakeman  in  put- 
ting his  head  out  of  window  of  car  should  be  left  to  the 
jury:  Walsh  v.  Or.  R'y  &  Nav.  Co.,  10  Or.  250. 

Contributory  negligence  is  a  defense,  and  should  be 
pleaded  as  such:  Grant  v.  Baker,  12  Or.  329. 

Instruction  as  to  duty  of  plaintiff  to  think  and  look  while 
approaching  dangerous  machinery  about  which  he  was 
ettiployed,  hold  proper:  Hurst  v.  Burnside,  12  Or.  520. 

The  plaintiff  claiming  that  there  was  an  emergency  re- 
quiring prompt  action,  in  which  ordinary  prudence 
could  not  be  exercised,  must  ask  instruction  on  that 
point,  or  he  cannot  complain  if  not  given:  Id. 

The  test  is,  whether  a  man  of  ordinary  prudence  would 
'have  done  the  act  under  all  the  circumstances:  Id. 

In  an  action  by  one  injured  while  coupling  cars  loaded 
with  projecting  rails,  held  that  upon  the  facts  shown 


426  Negligence. 

Negligence  (continued). 

nonsuit  should  liave  been  granted:  Scott  v.  Or.  R'y  & 
Nav.  Co.,  14  Or.  211. 

Employee,  continuing  in  an  employment  where  extra  haz- 
ardous modes  of  doing  the  business  are  adopted  as- 
sumes the  attendant  risk:  Id. 

In  such  case,  he  cannot  be  heard  to  say  he  was  exposed 
to  danger  of  an  unusual  or  extraordinary  character:  Id. 

Same  degree  of  prudence  is  not  to  be  expected  in  a  small 
child  as  in  adults:  Cassida  v.  Or.  R'y  &  Nav.  Co.,  14 
Or.  551. 

Evidence  that,  being  frightened  by  cattle,  the  intestate, 
aged  seven,  sought  refuge  on  the  railroad  trestle,  where 
she  was  killed  by  defendant's  train,  is  admissible  to  re- 
but contributory  negligence:  Id. 

Failure  of  steamship  to  exhibit  lights  when  approaching 
another,  which  is  complying  with  the  law  in  this  respect, 
does  not  excuse  the  latter  from  faults  contributing  to 
collision:  Meigs  and  Talbot  v.  Steamship  Northerner,  1 
W.  T.  78. 

Where  both  vessels  contributed  equally  to  the  fault,  the 
damage  should  be  shared  by  both:  Id.;  Puget  Sound 
C.  Co.  v.  Taylor,  2  W.  T.  93. 
Negotiable  Instruments.     See  Bills  and  Notes. 
New  Trial. 

Aflidavits  of  jurors  will  not  be  received  to  impeach  their 
verdict:  Cline  v.  Broy,  1  Or.  89;  Newby  v.  Territory,  1 
Or.  IGo;  Or.  Cas.  R.  R.  Co.  v.  Or.  Steam  Nav.  Co.,  3 
Or.  178. 

Omission  of  clerk  to  file  bill  of  particulars,  no  ground  for: 
Id. 

Evidence  must  be  new,  not  cumulative:  Cutter  v.  Steam- 
ship Columbia,  1  Or.  101;  Lander  v.  Miles,  3  Or.  40; 
McKilver  v.  Manchester,  1  W.  T.  255. 

Motion  must  be  made  in  the  trial  court:  Id. 

Newly  discovered  evidence  to  impeach  witness  on  former 
trial,  no  ground  for  new  trial:  Territory  v.  Latshaw,  1 
Or.  146. 

Where  two  courts  have  concurrent  jurisdiction  to  grant,  a 
party  cannot  apply  to  one,  and  on  refusal,  to  the  other, 
for  new  trial:  Newby  v.  Territory,  1  Or.  163. 

Not  granted  on  doubtful  and  disputed  questions  of  fact: 


New  Trial.  427 

New  Trial  (continued). 

Lander  v.  Miles,  3  Or.  40;  Kearney  v.  Snodgrass,  12 

Ur.  .jll;  Cfore  v.  Moses,  1  W.  T.  7 
Diligence  must  be  sliown,  and    that  the  new  evidence 

could  not  have  been  had:  Id. 
Motion  must  be  accompanied  by  affidavit  of  witness,  or 

Its  al)sonce  accounted  for:  Id. 
Evidence  of  material  facts  not  proved  or  offered  is  not 

cunmlative:  Id. 

"Made  diligent  inquiry,"  not  sufficient  in  affidavit;  facts 
must  be  stated:  Id. 

Where  it  is  evident  that  the  jury  have  disregarded  in- 
structions to  mjury  of  party,  new  trial  granted:  Brown 
V.  Cahalm,  3  Or.  45. 

Where  there  was  some  evidence  of  damage  to  the  amount 
found,  new  trial  denied:  Williams  v.  Poppleton,  3  Or. 

Not  granted  merely  because  judge  differs  from  jurv  as  to 
preponderance  of  evidence:  Or.  Gas.  R.  R  Co  "v  Or 
Steam  Nav.  Co.,  3  Or.  178.  •     •       • 

Twenty  days  after  filing  decision  rendered  in  vacation 
alloued  for  filing  motion  for  new  trial:  Arrigoni  v 
Johnson,  6  Or.  1G7.  fo     ^    v. 

Order  granting  or  denying  motion  for  new  trial  is  not  re- 
viewable on  appeal  or  error:  Bowen  v.  State,  1  Or  270- 
?^f\y\r^,^^^"g^^'  2  Or.  227;  State  v.  Wilson,  G  Or! 
428;  Ha  lock  v.  Portland,  8  Or.  29;  State  v.  McDonald, 

?9  n  ]r':  ^'?*'  "'■  ^'^^''  ^^  ^'-  ^-'^^'  ^^^^^  ^-  Mackey 
tT  J'  ^'^1''  ^^^^^"^y  V-  Snodgrass,  12  Or.  311;  State  v 
iiecker,  12  Or.  318;  Wississimi  v.  Territory,  1  W  T  6- 

w""  W  T  nf't   o  "^'''  ^  ^^-  ^-  -^-  McCorm'ick  v! 
1  NV.  1.  603;  Page  v.  Rodney,  2  W  T  461 
Such  potion  is  addressed  to  the  discretion  of  the  court- 

foR    TT-.f'\''^"^^'  ^  ^'-  ^^''   ^^^*^  ^-  ^^'il^^on,  6  Or.' 
428;  Hallock  V.  Portland,  8  Or.  29;  State  v.  McDon- 
a  d,  8  Or.   113;    State  v.  Drake,   11  Or.  396;   State  v 
Mackey,  12  Or.  154;  Kearney  v.  Snodgrass,  12  Or.  311  • 

J  W  '  I  ^i°T^  ^^^"«  ^'«-'  1'^  Or.  28;  Gore  v.  Moses,' 
1  vv.  1.  /;  .Smith  V.  United  States,  1  W.  T  26'>-  Pqcro 
V.  Rodney,  2  W.  T.  461.  '         '      ^ 

The  order  granting  or  refusing  can  be  reviewed  only  in 


428  New  Trial. 

New  Trial  (continued). 

case  of  abuse  of  discretion:  State  v.  Drake,  11  Or.  396; 
Gore  V.  Moses,  1  W.  T.  7;  Page  v.  Rodney,  2  W.  T.  461. 

Motion,  on  the  ground  that  a  juror  was  not  a  citizen, 
being  denied,  the  order  not  reviewable  on  appeal:  State 
V.  McDonald,  8  Or.  113. 

Justice  cannot  set  aside  his  judgment,  and  grant  new 
trial:  Griffin  v.  Pitman,  8  Or.  342. 

Motion  and  proceedings  on,  no  part  of  the  judgment  roll, 
and  not  considered  on  appeal  unless  made  a  part 
thereof  by  bill  of  exceptions:  Or.  R'y  Co.  v.  Wright,  10 
Or.  162;  Chung  Yow  v.  Hop  Chong,  11  Or.  220;  State 
V.  Drake,  11  Or.  396;  McAllister  v.  Territory,  1  W.  T. 
360;  but  see  Kearney  v.  Snodgrass,  12  Or.  311;  State 
V.  Becker,  12  Or.  318. 

Co-defendant  jointly  indicted,  having  been  acquitted  and 
become  a  competent  and  material  witness,  qusere, 
whether  it  is  ground  for  new  trial:  State  v.  Drake,  11 
Or.  396. 

Motion  for  new  trial,  and  exceptions  based  thereon,  are 
not  properly  a  part  of  a  bill  of  exceptions;  though  made 
a  part  thereof  cannot  be  reviewed  on  appeal:  Brown  v. 
State,  1  Or.  270;  Kearney  v.  Snodgrass,  12  Or.  311; 
State  V.  Becker,  12  Or.  318;  Jones  v.  Wiley,  1  W.  T. 
603. 

That  juror  drank  intoxicating  liquor  during  the  trial,  as 
a  ground  for  new  trial,  will  not  be  considered  on  ap- 
peal: State  v.  Becker,  12  Or.  318. 

Refusal  of  new  trial  for  tampering  with  juror  not  review- 
able on  appeal:  Tucker  v.  Flouring  ^lills  Co.,  13  Or.  28. 

Courts  should  be  reluctant  to  set  aside  verdict  where 
there  is  evidence  to  support  the  verdict,  or  the  evidence 
is  of  doubtful  interpretation:  Gore  v.  Moses,  1  W.  T.  7. 

New  trial  should  not  be  granted  for  newly  discovered  evi- 
dence, unless  it  is  apparent  such  evidence  would  alter 
the  verdict:  Leschi  v.  Territory,  1  W.  T.  13;  McKilver 
V.  Manchester,  1  W.  T.  255. 

Where  a  party  has  duly  excepted  to  a  ruling,  it  is  not 
necessary  in  order  to  preserve  it  that  it  should  be  renewed 
in  a  motion  for  new  trial  or  in  arrest  of  judgment:  Tol- 
mie  V.  Dean,  1  W.  T.  46. 


Nonsuit.  429 

New  Trial  (continued). 

New  trial  should  not  be  granted  when  it  is  apparent  by  the 

proofs  that  it  would  avail  nothing:  Id. 
Where  there  was  some  evidence  to  sustain  verdict,  court 
will  not  set  it  aside:  Williams  v.  Miller  &  Co.,  1  W  T. 
88. 
Erroneous  ruling  that  worked  no  prejudice,  no  cause  for 
new  trial:  Newberg  and  Abrams  v.  Farmer,  1  W    T 
182. 
What  the  newly  discovered  evidence  relied  on  is,  must  be 
■  made  clearly  to   appear:    McKilver  v.  Manchester,    1 
W.  T.  255. 
Legislature  cannot,  in  Washington  Territory,  grant  right 
of  appeal  from  an  order  granting  or  refusing  new  trial: 
McCormick  v.  W.  W.  &  C.  P.  R.  R.  Co.,  1  W.  T.  512. 
Provisions  of  chapter  1,  page  20,  acts  of  1875,  regarding 
petition  for  new  trial  after  judgment,  do  not  apply  to 
criminal  cases:  Thompson  v.  Territory,  1  W.  T.  548. 
Motion  for,  based  on  insufficiency  of  the  evidence  or  be- 
cause the  verdict  is  contrary  to  law,  must  be  upon  the 
written  statement  of  the  grounds  relied  on  required  by 
statute,  section  582,  Civil  Practice  Act:  Jones  v.  Wiley 
1  W.  T.  603. 
If  no  such  statement  be  made,  the  exception  to  the  rul- 
ing of  the  court,  refusing  a  new  trial,  is  void,  and  a  bill 
of  exceptions  based  thereon  fails:  Id. 
Exclusion  of  witness  for  drunkenness  no  ground  for  new 
trial,  unless  party  shows  the  materiality  of  the  testi- 
mony and  applies  to  the  court  for  a  continuance  until 
such  time  as  witness  will  be  able  to  testify:  Fox  v.  Ter- 
ritory, 2  W.  T.  297. 
Nonjoinder.     See  Parties. 
Nonsuit. 

Not  granted  unless  there  is  an  entire  lack  of  evidence  to 
entitle  plaintiff  to  recover:  Tippin  v.  Ward,  5  Or.  450; 
Southwell  V.  Beezley,  5  Or.  458;  Salmon  v.  Olds  and 
King,  9  Or.  488;  Ward  v.  Moorey,  1  W.  T.  104. 
Answer  in  equity  held  not  sufficient  pleading  of  counter- 
claim to  prevent  nonsuit:  Dove  v.  Ilayden,  5  Or.  500. 
Where  plaintiff's  evidence  is  insufficient  to  sustain  a  ver- 
dict, iionsuit  is  properly  granted:  Cogswell  v.  Or.  &  Cal. 
R.  R.  Co.,  G  Or.  417. 


480  Nonsuit, 

Nonsuit  (continued). 

Error  in  overruling  motion  for,  is  waived  by  putting  in 
evidence  by  way  of  defense,  which  supplies  the  defect 
in  plaintiffs  proof:  Bennett  v.  N.  P.  Express  Co.,  12  Or. 
49. 

Incompetent  evidence,  admitted  without  objection,  is 
treated  as  competent  on  motion  for  nonsuit:  Jacobsen 
V.  Siddal,  12  Or.  280. 

Must  be  such  an  entire  failure  of  proof  as  would  warrant 
the  court  in  setting  aside  a  verdict  to  authorize  nonsuit: 
Grant  v.  Baker,  12  Or.  329. 

The  word  "  may  "  is  construed  as  "  must "  in  the  statute 
providing  that  v/hen  the  plaintiff  on  the  trial  fails  to 
prove  his  case  the  court  may  dismiss:  Tolmie  v.  Dean, 
1  W.  T.  46. 
Notice.  See  Animals;  Appeal  and  Error;  Elections;  Fer- 
ries; Forcible  Entry  and  Detainer;  Guardian  and 
Ward;  Highways;  Jurisdiction;  Landlord  and  Tenant; 
Liens;  Pleading;  Possession;  Practice. 

What  sufficient  posting  of  notice  required  to  be  posted  at 
the  court-house,  before  county  commissioners  had  se- 
lected a  court-house:  Drew  v.  Gant,  1  Or.  197. 

What  sufTicient  notice  of  outstanding  equities  to  put  pur- 
chaser on  inquiry:  Stannis  v.  Nicholson,  2  Or.  332. 

Purchaser,  with  notice  of  equitable  rights,  will  not  be  per- 
mitted to  protect  himself  against  them:  Id. 

Notice  of  alteration  of  note,  or  circumstances  sufficient  to 
put  payee  on  inquiry,  will  prevent  his  recovery  against 
joint  makers  who  did  not  consent  to  the  alteration: 
Willis  V.  Wilson,  3  Or.  308. 

Whatever  is  sufficient  to  put  purchaser  on  inquiry  oper- 
ates as  notice:  Bohlman  v.  Coffin  and  Carter,  4  Or.  313; 
Carter  and  Mason  v.  Portland,  3  Or.  339;  Musgrove  v. 
Bonser,  5  Or.  313;  Richards  v.  Snyder  and  Crews,  11 
Or.  501;  Mann  v.  Young,  1  W.  T.  454. 

Actual  and  unequivocal  possession  is  notice  of  a  claim  of 
right  or  equities:  Id.;  Skellinger  v.  Smith,  1  W.  T.  369. 

Unrecorded  deed  carries  title,  as  against  subsequent  pur- 
chaser with  notice:  Musgrove  v.  Bonser,  5  Or.  313. 

Deed  not  entitled  to  record,  but  recorded,  may  operate  as 
actual  notice:  Id. 


Notice.  431 

Notice  (continued). 

Purchaser,  without  notice  of  defect  of  title,  has  lien  for 

his  improvements:  Hatcher  v.  Briggs,  G  Or.  31. 
In  an  action  against  a  city  for  injury  by  defective  side- 
walk, notice  must   be   alleged   and  proved:    Mack  v. 

Salem,  6  Or.  275. 
Purchaser,  without  notice  of  claim  of  state  for  lien  for 

costs  in  criminal  case,  takes  the  property  freed  from 

the  lien,  unless  the  judgment  is  docketed  within  reason- 
able time:  State  v.  Munds,  7  Or.  80. 
In   an   action   against  a  county  for  injury  by  defective 

bridge,  notice  must  be  alleged  and  proved:  lieilner  v. 

Union  County,  7  Or.  83. 
No  notice  of  intention  to  redeem  land  sold  at  tax  sale  is 

necessary:  Rich  v.  Palmer,  7  Or.  133. 
Where  one  buys  land,  he  is  presumed  to  buy  with  notice 

of  the  water  rights  in  use  thereon:  Coffman  v.  Robbins, 

8  Or.  278. 
Constructive  notice  not  imputed  to  purchaser  in  good 

faith  at  execution  sale,  where  there  is  no  judgment  to 

support  the  same:  Hoxter  v.  Poppleton,  9  Or.  481. 
No  notice  need  be  proved  against  a  purchaser  of  public 

lands,  the  title  of  which  is  already  vested  in  another; 

rule  of  caveat  emptor  applies:  Wardwell  v.  Paige,  9  Or. 

517. 
Attaching  creditor  stands  in  all  respects  as  a  bona  fide 

purchaser  as  to  notice  of  unrecorded  deed:  Boehreinger 

v.  Creighton,  10  Or.  42. 
Persons  erecting  improvements,  with  notice  of  adverse 

claim  to  the  land,  cannot  complain  of  the  loss  he  will 

suffer  if  owner  is  permitted  to  assert  his  rights:  God- 

dard  v.  Parker,  10  Or.  102. 
Purchaser  at  execution  sale,  without  notice  of  a  claim  of 

a  ^antee  of  the  judgment  debtor  under  a  defective 

deed,  has  rights  superior  to  such  grantee:  Bloomfield 

V.  Humason,  11  Or.  229. 
To  set  aside  fraudulent  conveyance,  where  a  valuable 

consideration  was  paid,  actual  notice  to  the  grantee 

must  be  proved:  Coolidge  and  McClaine  v.  Heneky  and 

Forward,  11  Or.  327. 
But  actual  notice  may  be  inferred  from  circumstances: 

Id. 


432  Notice, 

Notice  (continued). 

Purchaser  claiming  protection  of  equity  on  the  ground  of 
good  faith  and  the  want  of  notice  must  plead  and 
prove  the  facts  independently  of  recitals  in  his  deed: 
Richards  v.  Snyder  and  Crews,  11  Or.  501. 

Purchaser  under  a  quitclaim  deed  is  not  a  bona  fide  pur- 
chaser without  notice:  Baker  v.  Woodward,  12  Or.  3. 

Grantee  of  legal  title,  with  notice  of  outstanding  equitable 
interest,  takes  subject  thereto:  Id. 

Judgment  lien,  taken  with  notice  of  prior  unrecorded 
deed,  has  no  priority:  Id. 

Quitclaim  deed  in  chain  of  title  operates  as  notice  to  pur- 
chaser sufl5cient  to  put  him  on  inquiry:  Id. 

In  contest  between  legal  titles  in  ejectment,  defendant 
may  assume  the  burden  and  prove  notice  or  want  of 
consideration  invalidating  plaintiff's  title:  Mclntyre  v. 
Kamm,  12  Or.  253. 

How  far  lis  pendens  operates  as  notice  in  Oregon :  Walker 
V.  Goldsmith,  14  Or.  125. 

Formal  notice  of  charges  against  a  pilot  need  not  be 
served  upon  him  by  the  board  of  commissioners;  suffi- 
cient if  he  have  opportunity  to  explain  and  defend: 
Snow  V.  Reed,  14  Or.  342. 

Possession  under  color  of  title  operates  as  notice  to  the 
extent  of  the  defined  boundaries:  Phillippi  v.  Thomp- 
son, 8  Or.  428;  Joy  v.  Stump,  14  Or.  361. 

Actual  notice  includes  knowledge  of  facts  sufficient  to 
put  upon  inquiry:  Manaudas  v.  ]\Iann,  14  Or.  450. 

Possession  under  unacknowledged  deed  operates  as  actual 
notice:  Id. 

Party  in  court  must  take  notice  of  all  orders  made  in  the 
case  and  the  filing  of  all  pleadings:  Williams  v.  Miller 
&  Co.,  1  W.  T.  88. 

Duty  of  consignee  to  give  notice  to  carrier  when,  on  re- 
ceiving goods  by  freight,  he  discovers  that  they  were 
damaged  in  transit:  Williams  v.  Steamship  Columbia, 
1  W.  T.  95. 

Privy  to  a  deed  is  bound  by  the  notice  it  imparts,  whether 
possessed  of  actual  notice  or  not:  Skellinger  v.  Smith, 
1  W.  T.  369. 
Open,  notorious,  and  exclusive  possession  is  notice  to  the 
world  of  the  title  of  the  one  in  possession:  Id. 


Nuisances.  433 

Notice  (continued). 

Purchaser  is  fairly  chargeable  with  information  which  he 

would  have  obtained  by  inquiring  into  matter!?  brought 

to  his  notice:  Shockley  v.  Brown,  1  W.  T.  454. 
Actual  prior  notice  of  unrecorded  chattel  mortgage  does 

not  give  such  mortgage  precedence  over  the  attachment 

of  a   creditor  of  the   mortgagor:    Baxter  v.  Smith,   2 

W.  T.  97. 
Notice  to  Quit.     See  Landlord  and  Tenant. 
Novation. 

Where  contract  to  pay  debt  of  another  is  founded  on  new 

consideration,  subsisting  liability  of  original  debtor  no 

defense:  Hedges  v.  Strong,  3  Or.  18;  Ludwick  v.  Wat- 
son, 3  Or.  256. 
Agreement  to  substitute  another  agreement,  void  unless 

carried   into   execution    and    accepted    in  satisfaction: 

Smith  V.  Foster,  5  Or.  44. 
Contract  based  on  agreements  involving  other  parties  not 

valid,  except  there  has  been  a  novation:  Shattuck  v. 

Smith,  5  Or.  125. 
A  promise  by  A,  for  valuable  consideration  to  pay  his 

debt   due  B  to  C,  can   be  enforced    against   A  by  C: 

Baker  and  Smith  v.  Eglin,  11  Or.  333. 
Nuisances. 

Indi\'idual   may  maintain  injunction  suit  for  nuisance,. 

where   specially  and   irreparably  damaged:  Parrish  v. 

Stephens,  1  Or.  73;  Luhrs  v.  Sturtevant,  10  Or.  170. 
Requisites  and  sufficiency  of  indictment  for  maintaining: 

State  v.  Bergman,  6  Or.  341;  State  v.  Ilume,  12  Or.. 

133. 
Authority  by  charter  and  ordinance  in  city  to  punish  for,. 

does  not  oust  jurisdiction  of  state  courts:  Id. 
In  an  action  to  abate,  where  plaintiff  recovers  damages, 

he4«  entitled  to  a  warrant  to  have  the  nuisance  abated: 

Marsh  v.  Trullinger,  6  Or.  356. 
Damages  for  a  nuisance  in  damming  a  stream  and  over- 
flowing plaintiff's  land:  Id. 
Person  specially  damaged  by  obstructing  highway  with  a 

toll-gate  may  recover:  Milarkey  v.  Foster,  6  Or.  378. 
What  allegations  are  sufficient  to  show  special  damage  in 

such  case:  Id. 

Costs  under  section  539,  subdivision  1,  of  the  Code  (sec. 
Or.  Dig.— 28 


434  Nuisances. 

Nuisances  (continued). 

549,  Hill's  A.  L.),  should  be  awarded  to  the  party  who 
recovers  judgment,  the  right  to  the  possession  of  realty 
being  in  issue  in  the  action:  Bentley  v.  Jones,  7  Or. 
108. 

Complaint  in  action  for  damages  for  public  nuisance  must 
show  special  damage  to  the  plaintiff:  Roseburg  v.  Abra- 
ham, 8  Or.  509;  Luhrs  v.  Sturtevant,  10  Or.  170. 

Corporation  as  plaintiff  in  such  action  stands  on  the  same 
footing  as  private  person:  Luhrs  v.  Sturtevant  10  Or. 
170. 

To  divert  or  obstruct  watercourse  is  a  private  nuisance 
for  which  equity  affords  remedy:  Shively  v.  Hume,  10 
Or.  76. 

Complaint  held  not  sufficient  to  warrant  interference  with 
public  nuisance  at  suit  of  private  person:  Luhrs  v. 
Sturtevant,  10  Or.  170. 

When  equity  will  enjoin  maintaining  obstructions  in  pub- 
lic highway:  Id.;  Smith  v.  Gardner,  12  Id.  221;  Walls 
V.  Foster,  13  Or.  247. 

Affidavits  filed  with  motion  for  order  to  abate  are  part  of 
the  judgment  roll  and  transcript  on  appeal:  Ankeny  v. 
Fairview  Milling  Co.,  10  Or.  390. 

Such  order  must  not  order  defendant  to  abate  in  partic- 
ular manner,  but  must  simply  order  a  warrant  to  abate 
to  issue:  Id. 

Duty  of  sheriff  to  remove  nuisance  with  as  little  injury  as 
possible:  Id. 

In  making  order  to  abate,  court  may  describe  the  nui- 
sance from  its  own  knowledge  derived  from  the  facts 
proved  on  the  trial,  though  the  record  does  not  identify: 
Id. 

Indictment  for  obstructing  highway;  when  termini  must 
be  alleged  and  proved:  State  v.  Hume,  12  Or.  133. 

On  verdict  for  plaintiff,  warrant  to  abate  does  not  issue  as 
a  matter  of  course:  Kothenberthal  v.  City  of  Salem  Co., 
13  Or.  604. 

In  such  case,  it  may  appear  to  the  court  that  the  nuisance 
has  ceased  or  the  remedy  is  inadequate,  and  the  party 
may  be  left  to  seek  an  effective  remedy  in  equity:  Id. 
A  city  proceeding  to  abate  a  nuisance  is  clothed  with  attri- 
butes of  sovereignty,  and  may  prosecute  its  suit  in  the 


Offices  and  Officers.  435 

Nuisances  (continued). 

first  instance  by  bill  in  equity:  Moore  v.  Walla  Walla, 
2  W.  T.  184. 

If  defendant  demurs  to  the  complaint  in  such  case  on  the 
ground  that  plaintiff  has  a  remedy  at  law,  on  the  over- 
ruling of  his  demurrer  and  before  going  to  trial  he  must 
demand  a  jury  trial,  or  he  waives  the  objection:  Id. 
Nunc  pro  Tunc  Orders.    See  Courts;  Judges;  Judgments 

and  Decrees;  Jurisdiction;  Practice. 
Oath.     See  Aflidavit;  Jury  and  Jury  Trial. 
Obstructing  HighTvays.     Sec  Nuisances. 
Occupant.     See  Adverse  Possession;  Landlord  and  Tenant; 

Public  Lands. 
OflSces  and  Officers.  See  Assessors;  Board  of  Com- 
missioners for  Erection  of  Penitentiary;  Centennial 
Commission;  Compensation;  Constables;  Corporations; 
Deputy;  Elections;  Executions,  and  Proceedings  Sup- 
plemental; Jailer;  Jurisdiction;  Mandamus;  Municipal 
Corporations;  Quo  Warranto;  Schools;  Sheriffs;  Taxa- 
tion. 

Legislature  can  change  term,  after  oflBce  is  filled,  from  two 
years  to  one:  Territory  v.  Pyle,  1  Or.  149. 

One  who  claims  a  right  by  virtue  of  being  a  public  oflScer 
must  show  that  he  is  such  dejure:  Id. 

Contrary  to  public  policy  for  officer  to  use  his  appointing 
power  to  place  himself  in  office:  State  v.  Hoyt,  2  Or. 
246. 

Offices  of  city  marshal  and  city  councilman  are  incon- 
sistent, and  cannot  be  held  by  same  person:  Id. 

Where  an  officer  is  known  and  recognized  as  having  au- 
thority, court  presumes  he  acts  within  his  jurisdiction: 
Dennison  v.  Story,  1  Or.  272;  Roy  v.  Plorsley,  6  Or. 
270. 

Legislature  may  control  unearned  emoluments,  except 
where  prohibited  expressly:  Bird  v.  Wasco  Co.,  3  Or. 
282. 

Appointee  to  fill  vacancy  of  county  judgeship,  holds  until 
next  general  election  only:  State  v.  Johns,  3  Or.  533. 

The  term  attaches  to  the  person  elected  to  fill  the  same 5 
Id. 

Term  of  person  elected  county  judge  continues  four  years, 
unless  terminated  by  death  or  resignation:  Id. 


436  Offices  and  Officers. 

OjG&ces  and  Officers  (continued). 

The  right  to  try  a  contest  for  a  municipal  office  does  not 
pertain  to  a  municipality  by  implication  from  its  right 
to  elect  its  officers,  nor  from  its  general  power  to  pass 
ordinances  to  carry  into  effect  the  provisions  of  the 
charter:  Robertson  v.  Groves  and  Corvallis,  4  Or.  210. 

The  presumption  is,  that  officer  was  regularly  appointed, 
and  that  his  duty  has  been  regularly  performed:  Dolph 
V.  Barney,  5  Or.  192. 

Officers  clothed  with  statutory  power  to  do  an  act  for 
benefit  of  the  public,  to  perform  the  act  becomes  a  duty, 
though  statute  is  permissive  in  its  terms:  Springfield 
Milling  Co.  v.  Lane  Co.,  5  Or.  265;  Rankin  v.  Buck- 
man,  9  Or.  253;  Hutchinson  v.  Olympia,  2  W.  T.  314. 

Where  an  officer's  bond  is  lost  and  copy  cannot  be  had,  a 
person  damaged  by  official  delinquency  of  an  oflicer 
may  have  complete  relief  in  equity:  Howe  v.  Taylor,  G 
Or.  284;  S.  C,  9  Or.  288. 

Right  of  a  judge  to  sit  cannot  be  objected  to  in  criminal 
case  on  appeal,  unless  taken  in  the  trial  court:  State  v. 
Whitney,  7  Or.  386. 

The  right  to  judicial  office  cannot  be  questioned  collater- 
ally in  the  trial  of  a  criminal  case  before  the  court:  Id. 

Circuit  Court  will  entertain  proceedings  under  section 
354  of  the  Code  (sec.  357,  Hill's  A.  L.),  in  the  nature 
of  quo  warranto,  notwithstanding  a  municipal  board  has 
been  given  the  right  to  judge  of  the  election  of  its  mem- 
bers: State  v.  McKinnon,  8  Or.  493. 

But  where  the  charter  confers  exclusive  power  in  this  re- 
spect on  the  municipal  tribunal,  its  decision  will  not  be 
reviewed:  Simon  v.  Portland  Com.  Council,  9  Or.  437. 

Offices  of  circuit  and  supreme  judges  under  act  of  1878, 
providing  for  their  election  in  distinct  classes,  were 
created  by  the  act,  and  ipso  facto  became  vacant:  Cline 
and  Newsome  v.  Greenwood  and  Smith,  10  Or.  230. 

An  existing  vacant  offi,ce  may  be  filled  by  the  governor 
during  the  interim:  Id. 

Legislature  has  absolute  control  of  the  matter  of  conapcn- 
sation  of  public  officers:  Portland  v.  Besser,  10  Or.  242. 

Executive  officer  charged  with  exercise  of  judicial  func- 
tions is  responsible  only  for  proper  attention  and  good 
faith:  State  v.  Chadwick,  10  Or.  465. 


Offices  axd  Officers.  437 

Offices  and  Officers  (continued). 

Governor  having  rc^^igned,  secretary  of  state  succeeding 
to  the  duties  of  the  oflice  by  the  constitution,  and  con- 
tinuing to  discharge  the  duties  as  secretary  of  state,  is 
entitled  to  salary  as  governor:  Chadwick  v.  Earhart, 
11  Or.  389. 

Ceasing  to  be  secretary  of  state,  he  is  entitled  to  the 
oflQce  and  emoluments  as  governor,  until  the  successor 
is  duly  elected:  Id. 

Term  of  circuit  judge  is  six  years,  but  person  elected  dur- 
ing an  unexpired  term  holds,  not  for  six  years,  but  for 
remainder  of  term:  State  v.  Ware,  13  Or.  380. 

Policeman  ousted  by  mayor  and  common  council,  with- 
out suflicient  cause,  and  another  appointed  in  his  place, 
maj'  n)aintain  quo  xcarranto  against  the  intruder:  Selby 
v.  Portland,  14  Or.  243. 

Quserc,  whether  writ  of  review  would  not  lie  to  obtain  re- 
versal of  the  action:  Id. 

But  until  there  is  an  adjudication  in  a  direct  proceeding, 
adjudging  him  entitled  to  the  office,  he  cannot  sue  the 
city  for  the  salary:  Id. 

A  judicial  district  having  been  abolished  by  order  of  the 
judges,  pursuant  to  statute,  the  clerk  of  the  District 
Court  in  said  district,  from  the  date  of  the  order,  lost 
his  legal  existence,  and  all  his  subsequent  acts  as  clerk 
were  nullities:  Boyer  v.  Fowler,  1  W.  T.  101. 

Register  of  United  States  local  land-office  is  a  public 
officer,  and  his  record  may  be  proved  by  certified  copies: 
Ward  v.  Moorey,  1  W.  T.  104. 

The  acts  of  the  person  holding  said  office  cannot  be  im- 
peached collaterally:  Id. 

Act  of  Congress,  1809,  regulating  elections  in  Washington 
Territory,  had  the  effect  of  changing  the  time  for  elec- 
ti«n  of  county  and  other  officers:  Davidson  v.  Carson, 
1  W.  T.  307. 

Legislative  assembly  and  Congress  possess  the  power  of 
lengthening  or  shortening  tiie  terms  of  officers  elected 
solely  under  the  laws  of  the  territory:  Id. 

Terms  of  officers  elected  at  general  election  of  18G9  are 
n£)t  changed  by  said  act  of  Congress,  changing  time  for 
election  to  June,  1870:  Id. 

The  authority  of  a  notary  de  facto,  to  take  the  acknowl- 


43S  Offices  and  Officers. 

OfiB.ces  and  Officers  (continued). 

edgment  of  a  deed,  cannot  be  questioned  collaterally: 
Bullene  v.  Garrison,  1  W.  T.  587. 
Retired  army  officer  of  United  States  army  belongs  to  the 
army  within  section  1860,  Revised  Statutes  of  the  United 
States,  and  is  disqualified  from  holding  office  in  Wash- 
ington Territory:  Hill  v.  Territory,  2  W.  T.  147. 
Information  in  the  name  of  the  territory  is  the  proper 
method  of  ousting  one  unlawfully  holding  office  under 
the  laws  of  the  territory:  Id. 
Election  of  a  person  to  office,  so  disqualified  at  the  time 
of  his  election,  is  not  rendered  valid  by  a  repeal  of  the 
statute  disqualifying  him:  Id. 
Section  1222  of  the  United  States  Revised  Statutes,  prohib- 
iting all  officers  on  the  active  list  from  holding  civil 
office,  does  not  repeal  that  part  of  section  18G0  which 
forbids  officers  on  the  retired  list  from  holding  office  in 
the  territories:  Id. 
Officers  on  the  retired  list  are,  by  section  1094,  Revised 
Statutes,  expressly  declared  a  constituent  part  of  the 
army,  and  so  has  the  United  States  Supreme  Court  de- 
cided: Id. 

Official  Bonds.     See  Bonds  and  Undertakings. 

Oleomargarine.     Instruction  as  to  intent  to  ofier  for  sale, 
in  exposing  in  common  salesroom,  unmarked,  held  not 
erroneous:  State  v.  Dunbar,  13  Or.  591. 
So  exposing  the  same  is  an  act  from  which  the  intent  to 
sell  may  be  inferred:  Id. 

Onus  Probandi.     See  Evidence. 

Opinion  Evidence.     See  Evidence. 

Ordinances.     See  Municipal  Corporations. 

Pardon.     Does  not  restore  one  convicted  of  felony  to  civil 
rights  and  right  to  vote:  Darragh  v.  Bird,  3  Or.  229; 
contra,  Wood  v.  Fitzgerald,  3  Or.  568. 
Article  2,  section  3,  state  constitution,  no  restriction  on 
effect  of  pardon:  Wood  v.  Fitzgerald,  3  Or.  568. 

Parent  and  Child.     See  Infants. 

iS'o  liability  to  pay  wages  to  son  under  twenty-one  years 
voluntarily  returning  to  father's  farm,  after  having  been 
given  privilege  to  go  and  work  for  himself:  Albee  v. 
Albee,  3  Or.  321. 


Parties.  439 

Parent  and  Child  (continued). 

Son  over  twenty-one,  working  on  father's  farm,  when  en- 
titled to  recover  for  labor:  Id. 

Parent  not  liable  even  for  necessaries  furnished  minor 
without  autbority  express  or  implied:  Carney  v.  Bar- 
rett, 4  Or.  171. 

No  agreement  implied  in  law  that  father  will  pay  daughter 
living  in  family  for  services  as  housekeeper:  Barrett  v. 
Barrett,  5  Or.  411. 

Putative  father  of  a  bastard  is  not  liable  on  his  naked 
promise  for  its  support:  Nine  v.  Starr,  8  Or.  49. 

Mother  of  such  child  is  its  guardian,  and  is  bound  to 
maintain  it:  Id. 

Where  a  father  takes  deed  to  land  in  the  name  of  his 
infant  son,  and  goes  into  possession  and  improves,  his 
possession  is  the  son's  possession:  Lawrence  v.  Law- 
rence, 14  Or.  77. 

Influence  of  parent  is  presumed  so  long  as  the  dominion 
of  the  parent  lasts:  Baldock  v.  Johnson,  14  Or.  542. 

This,  though  the  daughter,  seventeen  years  of  age,  is  re- 
cently married,  but  still  resides  with  her  parent:  Id. 
Parol  Evidence.     See  Evidence. 

Parties.     See  Appeal  and  Error;  Contracts;   Deeds;   Estop- 
pel. 

Demurrer  lies  for  misjoinder  of  parties  defendant:  White 
v.  Delschneider,  1  Or.  254;  contra,  Powell  v.  Dayton 
etc.  R.  R.  Co.,  13  Or.  446. 

If  the  court  can  make  a  decree  not  prejudicial  to  the 
rights  of  parties,  the  objection  to  the  misjoinder  of  par- 
ties will  not  prevail:  Id. 

Legal  title  to  mortgaged  property  being  in  wife,  she  is 
necessary  party  to  foreclosure:  Fahie  v.  Pressy,  2  Or. 
23. 

Judgment  debtor,  or  his  representatives  after  his  death, 
are  proper  parties  to  object  to  confirmation  of  sheriff's 
sale:  Miller  v.  Bank  of  British  Columbia,  2  Or.  291. 

After  mandate  sent  below.  Supreme  Court  will  not  hear 
motion  to  substitute  parties:  Boon  v.  McClane,  2  Or. 
331. 

Corporation  must  bring  in  all  owners  in  action  to  condemn 
land:  Willamette  Falls  C.  &  L.  Co.  v.  Kelly,  3  Or.  99. 

Junior  and  subsequent  lien  claimants  proper  parties  in 


440  Parties. 

Parties  (continued). 

suit  to  foreclose  mortgage:  Besser  v.  Hawthorne,  3  Or. 
129;  S.  C,  3  Or.  512. 

One  not  made  party  not  bound,  and  may  afterward  fore- 
close: Besser  v.  Hawthorne,  3  Or.  512. 

One  of  makers  of  joint  note  has  a  right  to  have  the  others 
made  parties:  Kamm  v.  Harker,  3  Or.  208. 

In  a  complaint  against  a  married  woman,  she  may  be 
treated  as  a  feme  sole;  she  must  plead  her  coverture: 
Kennard  v.  Sax,  3  Or.  263. 

New  parties  being  suggested  by  the  answer,  amendment 
of  complaint  allowed  to  make  them  defendants:  Mc- 
Cown  V.  Hannah,  3  Or.  302. 

Trustees  of  unincorporated  religious  society  may  sue  for 
the  benefit  of  the  society:  Trustees  v.  Adams,  4  Or.  76. 

Administrator  has  no  power  to  sue  to  set  aside  decedent's 
deed  without  order  of  court:  King  and  Lownsdale  v. 
Boyd,  4  Or.  326. 

Complaint  by  trustee  of  an  express  trust  should  show  for 
whose  benefit  he  sues:  Hollada}'^  v.  Davis,  5  Or.  40. 

Judgment  creditors  may  unite  in  suit  to  set  aside  fraudu- 
lent conveyance:  Elfelt  v.  Hinch,  5  Or.  255. 

Petitioners  and  remonstrators  are  the  only  parties  to  pro- 
ceedings in  County  Court  to  lay  out  road:  C.  &  G.  Road 
Co.  v.  Douglas  County,  5  Or.  280. 

Third  party  holding  legal  title  of  realty  fraudulently  con- 
veyed is  a  proper  party  defendant  in  divorce  suit:  Wet- 
more  V.  Wetmore,  5  Or.  4C9. 

Minors  are  not  adversary  parties  to  guardian  in  proceed- 
ings before  County  Court  for  leave  to  mortgage  minor's 
property:  Trutch  v.  Bunnell,  5  Or.  304;  but  see  S.  C, 
11  Or.  58. 

Plaintiff  having  died,  objection  that  executrix  is  not  duly 
qualified  to  sue  must  be  taken  by  plea  in  abatement,  or 
is  waived:  JMurray  v.  IMurray,  6  Or.  26. 

Such  executrix,  being  also  legatee,  and  the  successor  in 
interest  in  the  subject-matter  of  the  suit,  is  qualified  to 
sue  under  section  37  of  the  Code  (sec.  38,  Hill's  A.  L.): 
Id. 

Application  for  continuance  of  cause  in  the  name  of  the 
personal  representatives  of  a  deceased  party,  if  made 
within  a  year,  is  in  time,  though  the  order  be  not  made 


Parties.  441 

Parties  (continued). 

until  lifter  the  expiration  of  the  vear:  Dick  v.  Kendall 
6  Or.  1G6. 

United  States  is  not  subject  to  process  or  jurisdiction  of 
state  court:  Goldsmith  v.  The   Revenue  Cutter,  6  Or 
250. 

Having  failed  to  acquire  jurisdiction  of  defendant,  and 
having  rendered  void  judgment,  justice  may  issue  alias 
summons  and  proceed:  Knapp  v.  King,  6  Or.  243. 

Finding  of  fact  by  the  court  is  conclusive  upon  parties  to 
the  suit  in  favor  of  persons  not  parties:  Knott  v.  Knott 
6  Or.  334. 

Stipulation  for  a  decree  affecting  the  property  rights  of  all 
tlu'  parties  to  a  suit,  but  not  entered  into  by  all,  is  inop- 
erative, and  cannot  be  enforced:  Adams  v.  Wilson,  6  Or 
391. 

Heirs  are  necessary  parties  defendant  in  foreclosure  suit 
against  executors:  Rcnshaw  v.  Taylor,  7  Or.  315. 

If  the  action  or  proceeding  can  be  determined  without 
them,  other  parties  cannot  be  brought  in:  Tichenor  v. 
Coggins,  8  Or.  270. 

Persons  holding  possession,  and  claiming  adversely  to 
plaintiff's  rights,  may  be  made  defendants  in  suit  by 
divorced  wife  against  husband  for  one  third  of  his  prop- 
erty: Weiss  V.  Bethel,  8  Or.  522. 

Objection  to  plaintiffs  suing  jointly  cannot  be  taken  for 
first  time  in  Supreme  Court:  Stingle  v.  Nevel,  9  Or.  62. 

Board  of  directors  of  the  state  university  are  a  corpora- 
tion, and  not  mere  agents  of  the  state,  and  may  be  sued 
without  joining  the  state  as  a  party:  Dunn  v.  State  Uni- 
versity, 9  Or.  357. 

The  inimunity  of  the  state  from  being  sued  applies  only 
to  its  being  made  a  party  to  the  record;  its  agents  hold- 
ing title  and  possession  of  property  may  be  sued  con- 
cerning the  same:  Id. 

Actions  by  or  against  a  county  must  be  brought  in  the 
name  of  tlie  county:  Weiss  v.  Jackson  Co.,  9  Or.  470- 
Vv'ood  V.  Riddle,  14  Or.  254.  ' 

Parties  whose  interests  and  damages  are  distinct,  damaged 
by  injunction,  may  sue  at  law  upon  the  bond  jointly  or 
severally,  though  the  injunction  is  joint:  Ruble  v  Coy- 
ote G.  &  S.  M.  Co.,  10  Or.  39. 


442  Parties. 

Parties  (continued). 

Tax-payer  is  entitled  to  sue  in  equity  to  prevent  fraudu- 
lent or  illegal  disposition  of  county  funds,  and  county 
need  not  be  a  party:  Carman  v.  Woodruff,  10  Or.  133; 
White  V.  Com.  Multnomah  County,  13  Or.  317. 

Private  relator  in  quo  warranto  is  not  a  party,  and  cannot 
control  the  proceedings:  State  v.  Douglas  County  Road 
Co.,  10  Or.  198. 

Private  parties  cannot  use  the  name  of  the  state  to  try  out 
a  question  of  title  between  themselves  by  quo  warranto: 
Wilson  and  Wakeman  v.  Shively,  10  Or.  267. 

State  is  proper  party  to  bring  suit  against  custodians  of 
school  funds  for  an  accounting:  State  v.  Chadwick  and 
Brown,  10  Or.  423. 

An  appeal  will  not  be  dismissed  for  want  of  necessary  par- 
ties, where  a  decision  can  be  made  respecting  the  parties 
to  the  appeal,  and  not  affecting  the  rights  of  other  per- 
sons not  made  parties:  Poppleton  v.  Nelson,  10  Or.  437. 

Person  for  whose  benefit  a  contract  is  made  may  sue  upon 
it:  Hughes  v.  Or.  R'y  &  Nav.  Co.,  11  Or.  437. 

In  a  suit  by  a  creditor  to  hold  a  stockholder  individually 
liable,  it  is  not  necessary  to  make  all  creditors  and 
stockholders  parties:  Brundage  v.  Mon.  G.  &  S.  M.  Co., 
12  Or.  322. 

In  such  suit,  if  a  defendant  stockholder  wants  other  stock- 
holders made  parties,  he  must  bring  them  in  at  his  own 
expense  by  ansAver  or  otherwise:  Id. 

But  in  a  suit  to  wind  up  the  affairs  of  an  insolvent  cor- 
poration, all  creditors  and  stockholders  are  necessary 
parties:  Id. 

Defendants  in  a  suit  for  joint  tort  are  not  liable  on  proof 
of  several  conversions:  Dahms  v.  Sears,  13  Or.  47; 
Cooper  V.  Blair,  14  Or.  255. 

Sheriff  and  several  attaching  creditors  under  separate  at- 
tachments are  not  properly  joined  as  defendants  for  con- 
version:  Id. 

In  an  action  on  a  joint  obligation,  judgment  may  be  had 
against  one  defendant  proved  liable,  where  the  others 
are  proved  not  liable:  Ah  Lep  v.  Gong  Choy,  13  Or. 
205;  Fisk  v.  Ilenarie,  14  Or.  29. 

Demurrer  for  defect  of  parties  lies  when  on  the  face  of  the 
complaint  the  presence  of  other  parties  appears  neces- 
Bary:  Cohen  v.  Ottenheimer,  13  Or.  220. 


Parties.  443 

Parties  (continued). 

Demurrer  to  the  complaint  as  not  stating  facts  sufficient 
is  the  remedy  when  too  many  parties  are  brought  in: 
Id. 

In  mandamxis,  where  the  matter  is  of  public  interest  as  to 
a  violation  of  a  public  duty,  relator  need  show  no  other 
interest  than  as  a  citizen  and  a  voter:  State  v.  Ware,  13 
Or.  380. 

Misjoinder  of  parties  plaintiff  is  not  ground  for  demurrer 
in  Oregon:  Powell  v.  Dayton  etc.  R.  R.  Co.,  13  Or.  446. 

Co-tenants  cannot  join  as  plaintiffs  in  ejectment,  but  the 
defect  is  waived  by  answering  over:  Minter  v.  Durham, 
13  Or.  470. 

Co-tenants  jointly  contracting  with  a  broker  are  properly 
joined  as  defendants  in  an  action  for  breach  of  the  con- 
tract: risk  v.  Henarie,  14  Or.  29. 

The  contract,  and  not  the  fact  of  their  co-tenancy,  deter- 
mines their  joint  or  several  liability:  Id. 

Person  purchasing  property  for  the  use  of,  and  at  the  in- 
stance of,  another,  is  a  trustee  of  an  express  trust,  and 
can  sue  regarding  it  in  his  own  name:  Hexter  v. 
Schneider,  14  Or.  185. 

County  is  necessary  party  in  proceedings  for  review  of 
judicial  action  of  the  County  Court  in  county  business: 
Wood  V.  Riddle,  14  Or.  254. 

To  enable  plaintiff  to  join  several  tort-feasors  as  defend- 
ants in  one  action,  some  community  in  the  wrong-doing 
must  exist  between  them :  Cooper  v.  Blair,  14  Or.  255. 

Different  persons,  taking  wheat  from  a  warehouse  at  differ- 
ent times  without  concert  of  action,  cannot  be  joined  as 
defendants  in  action  for  the  conversion :  Id. 

Where,  on  trial,  plaintiff  fails  to  prove  his  case  as  to  some 
of  the  defendants,  it  seems  he  can  amend  his  complaint 
by^Dmitting  them:  Id. 

On  a  contract  of  guaranty,  principal  and  guarantor  are 
severally  liable,  and  should  not  be  joined  as  defendants: 
Tyler  v.  T.  of  T.  A.  &  P.  U.,  14  Or.  485. 

Where  several  defendants  have  been  improperly  joined  in 
a  suit  on  contract,  it  is  the  duty  of  the  plaintiff  to  elect 
wliich  he  will  proceed  against:  Id. 

Objection  of  non-joinder  should  be  taken  at  the  proper 
fcitage  of  the  proceedings:  Gove  v.  Moses,  1  W.  T.  7. 


444  Parties. 

Parties  (continued). 

No  binding  order  can  be  made  on  persons  not  parties  to 
the  suit:  Madison  v.  Madison,  1  W.  T.  60. 

A  brought  suit  against  B  for  damage  to  his  crops  by  cattle 
of  B;  it  was  error,  upon  the  trial,  for  the  court  to  sum- 
marily dismiss  the  suit  on  account  of  the  non-joinder 
of  C,  who  had  an  interest  in  the  crops:  Washburn  v. 
Case,  1  W.  T.  253. 

The  interest  of  C  in  such  case  might  be  consistent  with 
the  right  of  A  to  recover  for  the  trespass,  and  at  most 
would  amount  to  a  partial  failure  of  proof:   Ed. 

Surviving  partner,  and  not  the  executor,  is  proper  party 
defendant,  in  the  absence  of  statute,  in  suit  for  a  part- 
nership debt:  Barlow  and  Shepherd  v.  Coggan,  1  \V.  T. 
257. 

Indian  can  be  sued  as  defendant  upon  a  contract  which 
he  is  not  prohibited  by  statute  from  making:  Gho  v. 
Julles,  1  W.  T.  325. 

Where  proceedings  are  instituted  to  compel  the  members 
of  the  board  of  county  commissioners  to  perform  duties 
devolving  upon  them  by  law,  not  as  a  board  but  as  in- 
dividuals, the  county  is  in  no  sense  a  party:  Kitsap  Co. 
V.  Carson,  1  W.  T.  419. 

Married  woman  can  maintain  libel  in  rem,  for  injury  to 
her  person  by  negligence  on  shipboard,  in  admiralty: 
Phelps  V.  Panama,  1  W.  T.  518. 

Objection  that  her  husband  joins  her  in  such  suit  can- 
not first  be  taken  advantage  of  in  the  Supreme  Court: 
Id. 

The  name  of  a  party  unnecessarily  inserted  in  a  libel 
should,  if  motion  be  made  therefor  at  proper  stage  of 
the  case,  be  stricken  out;  otherwise,  it  will  not  be  noticed: 
Id. 

When  new  parties  should  be  brought  in  on  proceedings 
supplemental  to  execution :  ^lurne  v.  Schwabacher  Bros. 
&  Co.,  2  W.  T.  130;  S.  C,  2  W.  T.  191. 

In  action  by  an  administrator  against  a  son  of  the  de- 
ceased for  conversion  of  funds  of  the  estate,  a  brother  of 
defendant  is  not  a  party  in  interest  as  to  the  record, 
and  may  testify  as  a  witness:  McCoy  v.  Ayers,  2  W.  T. 
307. 


PARTNERSniP.  445 

Partition. 

County  Court  has  no  authority  to  partition  real  estate  of 
decedent:  Ilanner  v.  Silver,  2  Or.  336;  Hatcher  v.  Briggs, 
6  Or.  31;  Burnside  v.  Savier,  G  Or.  154. 
Particular  i)roperty  must  be  designated,  and  the  interest 

of  the  persons,in  a  complaint  in  partition:  Id. 
Order  directing  partition  or  sale,  without  further  proceed- 
ings, under  statute  of  1855,  is  not  a  final  order,  and  not 
notice  to  parties  and  privies:  By  bee  v.  Summers,  4  Or.  854. 
Authority  of  County  Court  to  partition  was  abrogated  by 

act  of  1862:  Hatcher  v.  Briggs,  6  Or.  31. 
Administrator  has  no  power  to  partition  real  property  of 

partnership:  Burnside  v.  Savier,  6  Or.  154. 
Complaint  must  allege  plaintiff  is  in  possession:  Farris  v. 

Hayes,  9  Or.  81. 
Rule  that  possession  of  one  co-tenant  is  the  possession  of 
all  is  overcome  by  showing  that  such  co-tenant  claims 
to  own  the  whole  under  color  of  title:  Id. 
Partition  does  not  affect  rights  of  a  mortgagee  in  the  un- 
divided half  owned  by  his  mortgagor,  except  to  sever 
the  interest  without  disturbing    the  lien:  Board  S.  L. 
Com.  V.  Wiley  and  Davis,  10  Or.  86. 
Decree  which  ascertains  and  determines  rights  of  the  par- 
ties, and  leaves  nothing  to  be  done  but  to  appoint  ref- 
eree, etc.,  to  carry  it  into  effect,  is  final  decree,  and  ap- 
peal lies  therefrom:  Walker  v.  Goldsmith,  14  Or.  125. 
Questions  of  fact  can  be  tried  only  upon  issue  joined,  as 

in  other  suits:  Id. 
Partition  by   Probate  Court  as  a  judicial  proceeding  is 
void,  but  the  parties  consenting,  the  adults  by  appear- 
ence  in  person,  and  the  minors  by  guardians,  they  and 
their  successors  in  interest  are  bound:  Brazee  v.  Scho- 
field,  2  W.  T.  209. 
Parcri-partition,  consummated  by  possession  in  severalty, 
confirmed  by  long  acquiescence  and  many  changes  of 
title,  will  not  be  disturbed  in  equity:  Id. 
Partnership. 

Firm  name  signed  to  bond  binds  partner  signing  only, 
unless  the  firm  assent:  Charman  and  Warner  v.  IMc- 
L'ane,  1  Or.  339. 
Confession  of  judgment  by  one  partner  binds  him  only, 
unless  in  action  pending:  Richardson  v.  Fuller,  2  Or. 
179. 


446  Partnership. 

Partnership  (continued). 

Effect  of  signing  firm  name  to  note  and  mortgage  by  one 
partner  with  knowledge  of  the  other:  Chavener  v.  Wood, 
2  Or.  182. 

Partner  sued  on  joint  note  may  plead  in  abatement  non- 
joinder and  misjoinder:  Kamm  v.  Harker,  3  Or.  208. 

Partnership  cannot  sue  or  be  sued;  the  individual  mem- 
bers are  the  parties:  Id. 

Receiver  not  appointed,  unless  there  is  danger  of  ultimate 
loss  of  the  property:  Wellman  and  Peck  v.  Harker,  3 
Or.  253. 

On  a  contract  to  purchase  real  property  by  partners,  when 
survivor  is  entitled  to  special  performance:  Knott  v. 
Stephens,  3  Or.  269. 

Accounting,  when  partner  entitled  to,  and  what  complaint 
-must  show:  Holladay  v.  Elliott,  3  Or.  340. 

Effect  of  docketing  judgment  in  partnership  name:  Dear- 
born V.  Patton,  3  Or.  420. 

Partnership  partly  relating  to  land  is  valid  though  not  in 
writing:  Knott  v.  Knott,  6  Or.  142. 

Such  partnership  may  be  proved  by  parol:  Id. 

Partner  taking  ferry  and  franchise  in  his  own  name,  pur- 
chased with  partnership  property  for  the  firm,  held  a 
trustee  for  the  firm:  Id. 

Administrator  has  no  power  to  partition  real  estate  of  part- 
nership: Burnside  v.  Savier,  6  Or.  154. 

Dissolution  may  be  had  in  equity  when  business  becomes 
impracticable  without  great  loss:  Holladay  v.  Elliott,  8 
Or.  84. 

Referee  for  an  accounting  should  ascertain  what  the  prof- 
its were,  not  what  they  should  have  been:  Boire  v.  Mc- 
Ginn, 8  Or.  466. 

When  the  books  fail  to  show  the  profits,  experts  cannot 
testify  what  they  should  have  been:  Id. 

Profits  may  be  calculated  from  amount  of  goods  sold  at 
the  rate  of  profit  proved:  Id. 

Entries  in  books  where  both  partners  have  access  to  them 
are  prima  facie  correct  as  between  them:  Id. 

Dissolution  and  division  without  fraud  vests  the  property 
in  each  partner  Individ uallv:  McKinney  v.  Baker,  9 
Or.  74. 

Goods  formerly  belonging  to  firm,  but  after  such  division 


Partnership.  44  7 

Partnership  (continued). 

held  by  one  partner,  are  not  partnership  goods  that  will 
not  pass  to  his  assignee  for  all  his  creditors:  Id. 

Dissolution  agreement  held  not  executory,  thc.ugh  one 
partner  assumed  debts  to  be  paid  in  the  future:  Id. 

Dissolution  partly  consummated,  equity  will  take  juris- 
diction for  an  accounting,  and  to  ascertain  amounts  due 
on  final  settlement:  Gleason  v.  V^an  Aernani,  9  Or.  343. 

Final  settlement  as  a  defense  in  such  suit  must  be  pleaded: 
Id. 

Partner  is  not  entitled  to  compensation  for  his  services, 
unless  by  contract  expressed  or  implied:  Mann  v.  Flan- 
agan, 9  Or.  425. 

Liability  of  persons  on  a  note  signed  with  a  partnership 
name  by  one  of  them:  Kearney  v.  Snodgrass  and  Minor, 
10  Or.  181;  S.  C,  12  Or.  311. 

Definition  of  partnership:  Cogswell  v.  Wilson,  11  Or.  371; 
Bloomfield  v.  Buchanan,  13  Or.  108. 

Does  not  depend  on  the  fact  that  each  partner  has  in  all 
things  kept  the  partnership  agreement,  and  may  exist 
notwithstanding:  Id. 

Two  partnerships,  composed  of  same  individuals  in  part, 
cannot  sue  each  other  at  law:  Beacannon  v.  Liebe,  11 
Or.  443. 

But  the  assignee  of  the  claim  of  one  such  firm  against  the 
other,  where  no  accounting  is  necessary  to  fix  the 
amount,  may  sue  at  law  thereon:  Id. 

Principle  denying  corporations'  power  to  become  partners: 
Hackett  v.  Multnomah  County,  12  Or.  124. 

Partnership  articles  providing  for  a  division  of  the  pro- 
ceeds of  the  partnership  property  in  case  of  a  sale 
thereof  before  the  expiration  of  the  partnership,  one  of 
the  partners  cannot  be  deprived  of  his  share  without 
his  consent:  Moore  v.  Knott,  12  Or.  260. 

Incoming  partners  are  liable  on  a  contract  previously 
made  but  assumed  by  the  new  partnership,  though  the 
other  party  did  not  know  they  were  partners:  Kearney 
v.  Snodgrass,  12  Or.  311. 

Not  necessary  that  there  be  an  express  stipulation  to 
ehare  profit  and  loss  to  constitute  partnership:  Bloom- 
field  V.  Buchanan,  13  Or.  108. 

Partnership  not  liable  for  money  borrowed  by  one  of  the 


448  Partnership. 

Partnership  (continued). 

partners  on  his  own  account  representing  that  it  is  to 
be  used  in  the  partnership  business:  Ah  Lep  v.  Gong 
Choy,  13  Or.  205. 

Lender  must  have  understood  that  he  was  dealing  with 
the  firm  through  the  partner  as  agent  of  the  firm:  Id. 

In  an  action  in  wliich  it  is  in  issue  whether  certain  ac- 
counts had  been  transferred  on  the  partnership  books 
to  tlie  credit  of  one  of  the  partners,  the  books  are  evi- 
dence of  tlie  fact:  Moore  v.  Knott,  14  Or.  35. 

In  suit  for  accounting,  partners  are  usually  severally  lia- 
ble, but  not  jointly:  Bloomfield  v.  Buchanan,  14  Or.  181. 

But  where  there  is  a  concerted  action  among  some  of  the 
partners  to  exclude  one  from  the  profits,  they  are  both 
jointly  and  severally  liable:  Id. 

In  the  absence  of  statute,  surviving  partner  has  com- 
plete control  of  the  partnership  effects;  suits  may  be 
brought  by  or  against  him  for  partnership  demands 
and  liabilities:  Barlow  and  Shepherd  v.  Coggan,  1  W. 
T.  2.57. 

Remedy  cannot  be  had  against  executor  of  deceased  part- 
ner, unless  firm  property  is  insufficient  to  pay  the  claim: 
Id. 

When  one  of  the  makers  of  a  note  dies  before  the  maturity 
of  the  note,  presentment  and  demand  should  be  made 
on  the  surviving  maker,  and  not  the  executor  of  de- 
ceased partner:  Id. 

Such  claim  need  not  be  presented  to  administrator  before 
suit,  for  the  reason  that  the  surviving  partner  has  the 
same  knowledge  of  the  debt  that  the  deceased  had:  Id. 

Surviving  partner  on  having  to  pay  the  whole  of  joint 
debt  may  reimburse  himself  out  of  the  deceased  part- 
ner's share  of  the  firm  property:  Id. 

One  partner  cannot  sue  his  copartner  in  a  court  of  law 
for  a  recovery  upon  an  unsettled  partnership  indebted- 
ness: Stevens  v.  Baker,  1  W.  T.  315. 
Part  Performance.     See  Contracts;  Specific  Performance; 

Statute  of  Frauds. 
Party-walls.     See  Boundaries. 
Patents.     See  Public  Lands. 

Paupers.     Under   the   statute,  a   complaint  to   charge  the 
county  for  the  support  of  a  pauper,  must  show  that  the 


Payment.  449 

Paupers  (continued). 

county  board  have  recognized  the  person  as  a  pauper: 
Collins  V.  King  County,  1  W.  T.  416. 
Such  complaint  should  show  a  compliance,  by  the  one 

suing,  with  the  expressed  statute:  Id. 
No  action  on  implied  contract  to  reimburse  one  for  sup- 
porting a  pauper  will  lie  until  there  has  been  affirma- 
tive action  by  the  board,  which  must  be  pleaded:  Id. 
Such  complaint  must  show  the  claim  was  presented  and 
disallowed  by  the  board:  Id.;  King  County  v.  ColHns 
and  Condon,  1  W.  T.  4G9. 
Quaere,   whether   the    complaint    should    show    that   the 

pauper  had  no  relatives  bound  to  support  him:  Id. 
Entry  in  records  of  commissioners  of  King  County,  show- 
ing that  Snohomish  County  is  called  on  to  remove  cer- 
tain paupers  of  the  latter  county  kept  in  King  County, 
is  not  evidence  to  hold  King  County  liable  for  such, 
keeping:  King  County  v.  Collins  and  Condon,  1  W.  T. 
4G9. 
Such  record  only  shows  King  County  not  liable:  Id. 
No  recovery  can  be  had  against  a  county  for  the  keeping- 
of  paupers,  until  it  is  proved  that  the  county  board 
have  adjudicated  such  persons  paupers,  and  authorized 
plaintiff  to  keep  them  as  such:  Id. 
Payment.     See  Contracts;    Mortgages;    Statute   of  Limita- 
tions; Tender. 
State  has  power  to  require  taxes  paid  in  coin,  and  such. 

is  the  law  in  Oregon:  Whiteaker  v.  Haley,  2  Or.  128. 
Officer's  fees  may  be  paid  in  currency,  and  clerk  has  no. 

right  to  demand  coin:  Coffin  v.  Coulson,  2  Or.  205. 
Payment  by  one  joint  debtor  of  part  of  the  debt  revives 
the  debt  as  to  all  the  debtors:  Partlow  v.  Singer,  2  Or. 
307. 
Linoitation  begins  to  run  from  date  of  payment:  Id. 
Note  in  possession  of  maker,  presumed  paid;  presumption 

disputable:  Hedges  v.  Strong,  3  Or.  18. 
Payment  of  consideration  in  deed  may  be  disputed  by 

parol:  Brown  v.  Cahalin,  3  Or.  45. 
Mere   readiness   to   pay,   without   tender,   not   sufficient 

where  tender  is  essential:  Smith  v.  Foster,  5  Or.  44. 
Deferred  payments  become  due  at  once  on  breach  of  con- 
tract by  party  liable:  Monroe  v.  N.  P.  Coal  Mining  Co;^ 

5  Or.  509. 

Or.  Dig.— 29 


450  Payment. 

Payment  (continued). 

When  no  time  of  pa3rment  is  stated  in  the  note,  it  is  pay- 
able at  once:  Dodd  v.  Denny,  6  Or.  156. 

The  presumption  that  a  person  not  in  possession  of  note 
has  no  authority  to  receive  payments  may  be  rebutted: 
Swegle  V.  Wells,  7  Or.  222. 

Application  of  payments;  if  the  parties  fail  to  make,  when 
and  how  done  by  the  court:  Trullinger  v.  Kofoed,  7  Or. 
228;  Calhoun  y.  Galliland,  2  W.  T.  174. 

Payment  need  not  be  pleaded  as  a  counterclaim,  and  may 
be  proved  under  a  general  allegation  of  payment: 
Hendrix  v.  Gore,  8  Or.  40G. 

Where  the  court  applied  payments  admitted,  first  on  un- 
secured claim  and  then  on  secured  claim,  admitted  by 
answer  to  be  a  lien;  held,  proper  application  of  pay- 
ments: Jackson  v.  New  Idrian  C.  M.  Co.,  10  Or.  157. 

MoTtgagee  foreclosing  lien  to  secure  several  debts  due  him 
may,  if  proceeds  are  insufficient  to  pay  all,  pay  any 
one  of  the  debts,  and  a  surety  on  others  cannot  compel 
pro  rata  application:  Wilson  v.  Allen  and  Lewis,  11  Or. 
154. 

Action  for  money  had  and  received  lies  by  debtor  against 
creditor  to  recover  money  paid  to  the  latter  to  be  ap- 
plied on  particular  obligation,  and  not  so  applied: 
Stewart  v.  Phy,  11  Or.  335. 

A  promise  to  repay  need  not  be  alleged  in  such  case:  Id. 

Demand  is  not  necessary  before  action  for-  reasonable 
value  of  services  rendered:  Gibbs  v.  Davis,  11  Or.  288. 

Court  cannot,  on  distribution  of  assets  of  an  estate,  order 
a  share  of  a  devisee  to  be  paid  to  an  assignee  thereof: 
Harrington  v.  La  Rocque,  13  Or.  344. 

But  such  assignee  may  notify  the  executor  of  his  claim 
for  the  purpose  of  requiring  payment  to  him:  Id. 

Money  collected  from  the  principal  debtor  upon  execution 
is  pro  tanto  a  discharge  of  a  contract  of  guaranty  of  the 
debt:  Marx  v.  Swartz,  14  Or.  177. 

Evidence  reviewed,  and  held  to  establish  a  defense  of  part 
payment:  Hughes  v.  Walker,  14  Or.  481. 

Voluntary  payment  of  the  debt  of  another  gives  rise  to 
no  cause  of  action  in  favor  of  the  person  so  paying: 
Williams  &  Co.  v.  Miller  &  Co.,  1  W.  T.  88. 
Penalties.     See  Damages;  Fines  and  Forfeitures. 


Physicians  and  Surgeons.  451 

Penitentiary.     See  Board  of  Commissioners  for  Erection  of 

Penitentiary. 
Performance  of  Contracts.     See  Contracts;  Specific  Per- 
formance. 
Perjury. 

Suflicicnt  in  indictment  to  allege  the  oath  was  taken  in 
trial  before  Circuit  Court,  without  designating  the  offi- 
cer wlio  administered  it:  State  v.  Spencer,  6  Or.  152. 

Must  set  forth  the  matters  in  respect  of  wliich  the  crime 
was  committed:  State  v.  Witham,  6  Or.  3G6. 

Slight  variance  in  the  proof  of  the  statement  sworn  to 
from  that  alleged  in  the  indictment  is  material:  State 
V.  Ah  Sam,  7  Or.  477. 

When  an  indictment  charged  that  the  defendant  swore 
that  he  saw  A  at  the  house  of  B,  on  a  certain  day- 
named,  and  it  is  shown  that  A  was  not  there  on  that 
day,  and  testimony  to  the  effect  that  the  defendant  did 
not  so  swear,  but  swore  that  A  was  at  that  house  on 
another  day,  being  produced,  it  is  error  to  instruct  that 
the  variance  was  not  material;  Id. 
Perpetuation  of  Evidence.  See  Evidence. 
Personal   Property.     See   Chattel   Mortgages;    Replevin; 

Sales;  Taxation. 
Physicians  and  Surgeons.     See  Contracts. 

Responsible  for  ordinary  skill;  not  liable  for  error  of 
judgment:  Heath  v.  Glisan,  3  Or.  64;  Boydston  v. 
Giltner,  3  Or.  118;  Williams  v.  Poppleton,  3  Or.  139. 

Rcfracture  of  arm  by  surgeon ;  question  of  negligence,  and 
when  liable  for:  Boydston  v.  Giltner,  3  Or.  118. 

Experts  may  testify  to  skill  used  in  a  certain  operation, 
but  not  to  the  skill  of  defendant  generally:  Id.;  Wil- 
liams V.  Poppleton,  3  Or.  139. 

Reputation  for  skill  not  admissible  as  evidence:  Williams 
v^Poppleton,  3  Or.  139. 

Consultations  as  part  of  res  gestae  admissible,  but  not 
otherwise:  Id. 

Question  which  surgical  system  is  best,  or  other  questions 
of  surgical  science,  not  to  be  considered:  Id. 

Sufficient  if  practitioner  follow  a  known  system:  Id. 

The  statute  prescribing  qualifications  of  a  person  prac- 
ticing medicine  is  in  no  sense  an  ex  post  facto  law:  Fox 
v.  Territory,  2  W.  T.  297. 


452  Physicians  and  Surgeons. 

Physicians  and  Surgeons  (continued). 

Nor  does  such  act  prescribing  who  may  practice  medicine 
violate  the  fourteenth  amendment  of  the  United  States 
constitution,  either  in  depriving  any  person  of  his 
rights,  or  in  making  an  unjust  discrimination  against 
him:  Id. 
Pilot  Commissioners.  See  Pilots  and  Pilotage. 
Pilots  and  Pilotage. 

In  suit  between  third  persons,  validity  of  warrant  to  act 
as  pilot  cannot  be  questioned:  Edwards  v.  Steamship 
Panama,  1  Or.  418. 

Possession  and  exhibition  of  warrant,  sufficient  to  author- 
ize master  to  employ:  Id. 

Territory  of  Washington  has  power  to  pass  pilotage  laws: 
Id. 

Review  of  laws  of  United  States  in  reference  to  pilotage: 
Id. 

As  to  certain  steam  vessels  the  act  of  Congress  of  1852 
supersedes  all  state  laws:  Id. 

Formal  notice  of  charges  need  not  be  served  on  a  pilot  by 
the  board  of  commissioners;  it  is  sufficient  if  he  be 
given  an  opportunity  to  explain  and  disprove:  Snow  v. 
Reed,  14  Or.  342. 

Board  cannot  delegate  to  another  the  duty  of  deciding 
upon  such  charges,  but  they  may  employ  an  attorney 
to  advise  them:  Id. 

The  word  "  states,"  in  the  act  of  Congress  of  1837,  regard- 
ing pilotage  on  navigable  rivers  between  states,  includes 
territories:  Neil  v.  Wilson,  14  Or.  410. 

In  Oregon,  pilot  who  has  brought  a  vessel  into  the  Colum- 
bia River  cannot  enforce  a  claim  for  outward  pilotage 
fees  also,  as  provided  by  Oregon  statute,  if  the  vessel 
chooses  to  take  a  Washington  Territory  pilot  out:  Id. 
Pleadings.  See  Abatement;  Accounts;  Accounting;  Actions 
and  Suits;  Administration;  Administrators  and  Execu- 
tors; Admiralty;  Answers  and  Defenses;  Appeal  and 
Error;  Assumpsit;  Bill  of  Particulars;  Bills  and  Notes; 
Bonds  and  Undertakings;  Cloud  on  Title;  Codes;  Com- 
plaints; Contracts;  Criminal  Law;  Damages;  Divorce; 
Ejectment;  Equity;  Estoppel;  Evidence;  Forcible  En- 
try and  Detainer;  Fraud  and  Deceit;  Fraudulent  Con- 
veyance;  Habeas   Corpus;   Injunctions;   Interpleader; 


Pleadings.  453 

Pleadings  (continued). 

Jurisdiction;  Justice  of  the  Peace;  Malicious  Prosecu- 
tion; Mistake  and  Accident;  Municipal  Corporations; 
Negligence;  Nuisance;  Parties;  Partition;  Paupers; 
Practice;  Quieting  Title;  Reformation;  Seduction;  Set- 
off and  Counterclaims;  Slander  and  Libel;  Specific 
Performance;  Usury. 

1.  Certainty  and  Definiteness. 

2.  Verification. 

3.  Construction. 
•4.   Admissions. 

5.  Joinder  of  Causes. 

6.  Motion  to  Strike  out. 

7.  Miscellaneous  Motions 

8.  Demurrer. 

9.  Amendments. 

10.   Supplemental  Pleadings. 
1.    Certainty  and  Definiteness. 

Complaint  alleging  mere  conclusions  of  law  will  not  sus- 
tain judgment  in  default;  AVilliams  v.  Knighton  1  Or 
234. 

Pleadings  in  County  Court,  under  the  act  of  1859,  were 
not  required  to  be  in  any  particular  form:  Cain  v 
Harden,  1  Or.  360. 

The  facts  should  be  stated  positively,  and  in  a  traversable 
form:  Heatherly  v.  Iladley,  2  Or.  269. 

Account  being  insufficiently  pleaded,  defendant  should  not 
demand  bill  of  items,  but  should  move  that  same  be 
made  more  definite  and  certain:  Flanders  v  Ish  2  Or 
320. 

Though  complaint  does  not  state  cause  of  action,  court 
may  have  jurisdiction:  Norman  v.  Zieber,  3  Or.  197. 

Mere  vagueness  must  be  corrected  by  amendment,  not 
visited  by  judgment:  Foren  v.  Dealey,  4  Or.  92;  Hough- 
ton and  Palmer  v.  Beck,  9  Or.  325. 

Concise  statement  of  facts,  constituting  action  or  defense, 
should  be  pleaded,  and  not  the  circumstances  from  which 
such  fiicts  can  be  inferred:  Smith  v.  Foster,  5  Or.  44. 

Strict  formality  in  pleading  in  Justice's  Court  not  neces- 
BAry:  Houghton  and  Palmer  v.  Bock,  9  Or.  325. 

Informal  statement  of  fact  is  cured  by  verdict:  Id.;  David 
V.  Waters,  11  Or.  448;  Aiken  v.  Coolidge,  12  Or.  244; 
Andros  v.  Childers,  14  Or.  447. 


454  Pleadings. 

Pleadings  (continued). 

But  verdict  does  not  supply  a  fact  not  pleaded:  Weiner  v. 

Lee  Shing,  12  Or.  276. 
In  pleading  city  ordinance  (prior  to  1885),  mere  reference 

to  it  by  number  is  insufficient;  it  must  be  set  fortli  in 

extenso  so  far  as  relied  on:  Pomeroy  v.  Lappeus,  9  Or. 

363;  Nodine  v.  Union,  13  Or.  587. 
Facts  should  not  be  stated  in  the  alternative:  Ladd  and 

Bush  V.  Ramsby,  10  Or.  207. 
Uncertainty,  after  judgment  and  on  appeal,  no  ground  for 

reversal,   where   there   is   no   fatal   defect:    Osborn    v. 

Graves,  11  Or.  526;  Baldoek  v.  Johnson,  14  Or.  542. 
Where  facts  sufficient  are  alleged,  although  encumbered 

with  redundant  matter,  the  complaint  will  be  sustained, 

no  motion  to  strike  out  having  been  made:  Smith  v. 

Butler,  11  Or.  46. 
In   pleading   the  performance  of  a  condition  precedent 

under  the  Code,  it  is  sufficient  to  allege  generally  that 

the  party  performed   all  the  conditions  on  his  part: 

Griffin  v.  Pitman,  8  Or.  342;  Fisk  v.  Henarie,  13  Or. 

156. 
After  verdict  the  only  question  is,  whether  the  facts  stated 

are  sufficient  to  sustain  the  verdict:  Fisk  v.  Henarie, 

13  Or.  156. 
A  defective  statement  of  facts  in  a  pleading  is  waived  by 

joining  issue  upon  them:  Davis  v.  Wait,  12  Or.  425. 
Description  and  valuation  of  mare  and  her  colt  together, 

in  complaint  in  replevin,  is  sufficient:  Prescott  v.  Heil- 

ner,  13  Or.  200. 
Essential  facts  must  be  alleged:  Tolmie  v.  Dean,  1  W.  T. 

46. 
Answer  must  state  the  facts  with  the  certainty  and  defi- 

niteness  of  a  complaint:  Meeker  v.  Wren,  1  W.  T.  73; 

Roeder,  Peabody,  &  Co.  v.  Brown,  1  W.  T.  112. 
Pleadings  under  the  Code  are  not  subject  to  the  rules  of 

the  old  system  of  pleading:  Newberg  and  Abrams  v. 

Farmer,  1  W.  T.  182;  P.  S.  I.  Co.  v.  Worthington,  2 

W.  T.  472. 
The  logic  of  pleadings  stated,  and  the  rigid  rules  of  the 

common  law  contrasted  with   the  rules  of  the  Code: 

Renton  v.  St.  Louis,  1  W.  T.  215. 
Common-law  forms,  while  not  demurrable,  are  too  indefi- 
nite and  uncertain  for  pleadings  under  the  Code:  Id. 


Pleadings.  455 

Pleadings  (continued). 

PlaintiiF  must  state  his  cause  of  action  with  sufTicient 
particularity  to  inform  the  defendant  of  its  real  char- 
acter: P.  S.  I.  Co.  V.  Worthington,  2  W.  T.  472. 
The  defendant  must  deny  the  plaintifT's  allegations,  or  he 
must  state  new  matters  in  avoidance,  by  way  of  coun- 
terclaim: Id. 
If  the  pleadings  are  not  full  and  definite,  the  remedy  is 
by  motion  to  cure  the  defect:  Id. 
2.   Verification. 

By  person  having  knowledge  of  the  facts  must  show  that 
he  has  knowledge  of  all  the  facts  alleged:  Willamette 
Falls  etc.  Co.  v.  Riley,  1  Or.  183. 
Where  affidavit  omitted  venue,  but  the  officer  making  it 
resided  and   had  authority  within  the  district  of  the 
court,  it  was  held  sufficient:    Dennison  v.  Story,  1  Or. 
272. 
Verification  by  agent  need  not  state  the  party  is  out  of 
the  county,  if  all  the  material  allegations  are  known  to 
the  agent:  Steamer  Senorita  v.  Simonds,  1  Or.  274. 
Allowance  of  amendment  to  is  discretionary:   Blanchard 

V.  Bennett,  1  Or.  328. 
Jurisdiction  and  authority  of  person  administering  oath 

must  appear  in  his  certificate:  Id. 
Want  of  proper  verification  or  subscription  is  an  irregu- 
larity waived  in  pleading  over:   State  v.  Chadwick  and 
Brown,  10  Or.  423. 
And  the  objection  to  the  form  of  verification  of  an  item- 
ized account,  furnished  on  demand,  must  bo  promptly 
taken,  or  it  is  waived:  Bobbins  v.  Benson,  11  Or.  514. 
3.   Construction. 

Failure  to  deny  fact,  and  conclusion  therefrom,  admits 
fact,  but   not  conclusion:    Boydston  v.  Gilmer,  3  Or. 

Its. 

Opinion  of  experts  admissible  to  explain  technical  words 

in,  but  not  the  construction  of,  the  pleading:  Williams 

v.  Poppleton,  3  Or.  139. 
It  does  not  raise  an   issue  to  deny  that  plaintiff  is  a 

"duly  organized  corporation":    Oregon  Central  R.  R. 

Co.  V.  Scoggin,  3  Or.  IGl. 
Navigability  of  stream  alleged  between  certain  points, 

not  extended  by  construction  beyond  those  points:  Fel- 

ger  v.  Robinson,  3  Or.  455. 


456  Pleadings. 

Pleadings  (continued). 

Where  answer  attempts  to  allege  manner  of  service  of 
summons,  evidence  cannot  aid  the  allegation:  Heath- 
erly  v.  Hadley  and  Owen,  4  Or.  1. 

In  order  to  determine  the  issues  to  be  tried  in  an  action, 
the  court  can  look  to  the  pleadings  only,  which  cannot 
be  enlarged  or  explained  by  affidavits:  Cauthorn  v. 
King,  8  Or.  138. 

Allegation  that  an  order  was  made  appointing  an  admin- 
istrator on  a  certain  day  cannot  be  held  to  mean  that 
letters  appointing  him  issued  at  that  time:  Wells  v. 
Applegate,  10  Or.  519. 

Such  construction  should  be  favored  as  will  lead  parties 
to  make  early  objections  to  defective  pleadings:  Renton 
V.  St.  Louis,  1  W\  T.  215. 
4.    Admissions. 

Party  who  would  otherwise  be  estopped  may  take  advan- 
tage of  fact  admitted  by  adversary's  pleadings:  Lee  v. 
Summers,  2  Or.  260. 

Failure  to  deny  fact  and  conclusion  therefrom  admits  the 
fact,  but  not  the  conclusion:  Boydston  v.  Giltner,  3  Or. 
118. 

Character  of  wound,  being  alleged  in  answer,  where  the 
reply  does  not  deny  the  same,  the  admission  is  conclu- 
sive:  Williams  v.  Poppleton,  3  Or.  139. 

Where  the  pleadings  admit  an  agreed  price  for  labor,  evi- 
dence of  reasonable  value  not  admissible:  Davis  v. 
Mason,  3  Or.  154. 

Guardian  ad  litem  may  bind  infant  by  admi.";sions  in 
pleadings:  English  v.  Savage,  5  Or.  518. 

If  plaintiff  relies  on  the  admissions  in  the  answer  to  re- 
cover, he  should  not  deny  such  admissions  in  his  reply: 
Spores  V.  Boggs,  6  Or.  122. 

Where  the  answer  admits  an  allegation  of  the  complaint, 
plaintiff  is  precluded  from  proving  a  state  of  facts 
other  than  alleged:  De  Lashmutt  v.  Everson,  7  Or. 
212. 

Answer  admitting  an  essential  fact  omitted  from  com- 
plaint aids  the  latter,  and  it  is  good  after  verdict:  Tur- 
ner V.  Corbett,  9  Or.  79. 

Decree  founded  on  claim  to  the  extent  admitted  in  the 
answer  is  good:  Jackson  v.  New  Idrian  C.  M.  Co.,  10 
Or.  157. 


Pleadings.  457 

Pleadings  (continued). 

An  answer  atlujitting  the  facts  alleged  in  the  complaint, 
whicli  entitle  the  plaintiff  to  damages,  but  denying 
the  damages,  at  least  nominal  damages  follow:  Iladlan 
V.  Ott,  2  W.  T.  1G5. 

5.  Joinder  of  Causes. 

Claims  for  wages  earned  under  a  contract  before  discharge 
from  the  employment,  and  after  discharge,  may  be 
united:  Bowman  v.  Ilolladay,  3  Or.  182. 

"Multifariousness,"  assigned  as  an  objection  in  a  de- 
murrer, though  a  term  not  known  to  the  Code,  may  be 
construed  as  misjoinder  of  causes  of  action:  Cohen  v. 
Ottenheimer,  13  Or.  220. 

Demurrer  for  misjoinder  being  sustained,  an  entirely  new 
pleading  must  be  filed,  containing  the  cause  which  the 
pleader  elects  to  pursue:  Id. 

Where  plaintiffs  jointly  sue,  relying  on  allegations  of  mis- 
representation, which  do  not  appear  to  have  been  made 
to  them  as  a  class,  demurrer  for  misjoinder  lies:  Powell 
V.  Dayton  etc.  R.  R.  Co.,  13  Or.  44G. 

Court  unable  to  agree  whether  a  count  for  destruction  of 
a  building  may  be  joined  with  counts  upon  contract: 
Williams  v.  Miller  &  Co.,  1  W.  T.  88. 

6.  Motion  to  Strike  out. 

Matter  in  abatement  stricken  out,  when  defendant  refused 
to  elect  between  abatement  and  bar  pleaded  in  same 
answer:  Or.  Central  R.  R.  Co.  v.  Wait,  3  Or.  91. 

If  part  of  matter  moved  to  be  stricken  out  is  properly 
pleaded,  motion  denied:  White  v.  Allen,  3  Or.  103;  Hol- 
brook  V.  Page,  3  Or.  374. 

When  matter  in  abatement  and  bar  is  pleaded  in  same  an- 
swer, abatement  stricken  out  on  motion:  Or.  Central 
R.  R.  Co.  V.  Scoggin,  3  Or.  161. 

Redundant  matter  in  an  action  for  recovery  of  real  prop- 
erty: Pease  v.  Hannah,  3  Or.  301. 

Demurrer,  and  not  motion  to  strike  out,  is  the  remedy 
against  deficient  pleading  filed  in  good  faith:  Cline  v. 
Cline,  3  Or.  355. 

Test  of  materiality:  Will  failure  to  prove  the  allegation 
decide  tlie  case,  in  whole  or  in  part?  Id. 

Averments  not  presenting  issuable  facts  will  be  stricken 
out  on  motion:  Ilolbrook  v.  Page,  3  Or.  374. 


458  Pleadings. 

Pleadings  (continued). 

Express  admissions  in  answer  are  unnecessary,  and  may 
be  stricken  out  as  redundant:  Id. 

Defense  sufficient  as  pleaded  may  be  stricken  out  if  false, 
but  cannot  be  demurred  out:  Torrence  v.  Strong,  4  Or. 
39. 

Answer  must  be  false,  and  pleaded  in  bad  faith,  to  justify 
striking  out  as  sham:  Foren  v.  Dealey,  4  Or.  92. 

In  absence  of  motion  to  strike  out,  mere  surplusage  will 
not  render  a  complaint  fatally  defective:  Smith  v.  But- 
ler, 11  Or.  46. 

Demurrer  cannot  be  stricken  out  on  motion:  Cohen  v.  Ot- 
tenheimer,  13  Or.  220. 

Error  in  striking  out  an  answer  is  waived  by  filing  a  new 
answer:  Hexter  v.  Schneider,  14  Or.  184. 

Motion  to  strike  out  a  motion  will  not  be  allowed:  Mann 
V.  Young,  1  W.  T.  454. 

Defendant,  who  has  pleaded  irrelevant  matter  in  his  an- 
swer cannot  complain  of  refusal  of  court  to  strike  out 
like  matter  from  the  reply:  P.  S.  I.  Co.  v.  Worthington, 
2  W.  T.  472. 
7.   Miscellaneous  Motions. 

Motion  to  make  definite,  and  not  demand  for  bill  of 
items,  is  proper  remedy,  when  insufficient  statement  of 
account  is  set  out  in  complaint:  Flanders  v.  Ish,  2  Or. 
320. 

Where  abatement  and  bar  were  pleaded  in  same  answer, 
motion  to  compel  election  sustained:  Or.  Central  R.  R. 
Co.  V.  Wait,  3  Or.  91. 

Counter-affidavits  may  be  filed  on  motion  for  leav'e  to  de- 
fend after  judgment, under  section  57  of  Code:  Smith  v. 
Smith,  3  Or.  363. 

Motion  for  judgment  on  the  pleadings  allowed,  where 
answer  denies  legal  conclusions  only:  Simpson  v. 
Prather,  5  Or.  86. 

Such  motion,  under  the  Oregon  Code,  should  not  be  al- 
lowed, except  where  new  matter  in  answer  is  not  de- 
nied by  reply:  Bowles  v.  Doblo,  11  Or.  474. 

In  absence  of  demurrer,  defective  pleading  not  constitut- 
ing a  defense  should  be  taken  advantage  of,  after  ver- 
dict, by  motion  non  obstante,  and  not  by  objection  to 
proof  at  trial:  Specht  v.  Allen,  12  Or.  117. 


Pleadings.  459 

Pleadings  (continued). 

If  complaint  be  faulty  in  other  respects  than  those  demur- 
rable under  the  Code,  the  fault  may  be  reached  by 
motion:  Renton  v.  St.  Louis,  1  W.  T.  215. 

If  the  pleadings  are  not  full  and  accurate,  the  remedy  is 
by  motion  to  cure  the  defect:  P.  S.  I.  Co.  v.  Worthing- 
ton,  2  W.  T.  472. 
8.   Amendments. 

Allowance  of  amendment  to  verification  is  discretionary: 
Blanchard  v.  Bennett,  1  Or.  328. 

Amendment  on  appeal  from  County  Court  under  the 
statute  does  not  include  the  right  of  filing  a  new  plead- 
ing for  first  time  after  default:  Cain  v.  Harden,  1  Or. 
3G0. 

Allowance  of  amendment  after  calling  case  for  trial  is 
discretionary:  Brauns  v.  Stearns,  1  Or.  3G7. 

Abatement  and  bar  pleaded  in  same  answer,  leave  to  amend 
matter  in  abatement  denied:  Or.  Central  R.  R.  Co.  v. 
Scoggin,  3  Or.  161. 

Though  complaint  does  not  allege  sufficient  facts,  court 
may  have  jurisdiction  and  allow  amendment:  Norman 
V.  Zicber,  3  Or.  197. 

Amendment  of  complaint  allowed  to  add  new  defendants 
suggested  by  the  answer:  McCown  v.  Hannah,  3  Or. 
302. 

Leave  to  amend,  by  setting  up  facts  known  at  time  of  fil- 
ing pleading  not  granted  without  excuse  shown:  IIol- 
laday  v.  Elliott,  3  Or.  340. 

Distinction  between  supplementary  answer  and  such 
amendment:  Id. 

Plaintiff  seeking  to  recover  on  contract  different  from  that 
pleaded  must  get  leave  to  amend:  Banks  v.  Crow,  3 
Or.  477. 

ArlTendment  discretion ar}'  in  Circuit  Court;  not  permitted 
in  Supreme  Court:  Bamford  v.  Bamford,  4  Or.  30;  Hen- 
derson V.  Morris,  5  Or.  24. 

Mere  vagueness  is  to  be  corrected  by  amendment,  not 
visited  by  judgment:  Foren  v.  Dealey,  4  Or.  92; 
Houghton  and  Palmer  v.  Beck,  9  Or.  325. 

On  appeal  from  justice  to  Circuit  Court,  amendments 
changing  the  issues  not  allowed:  Moser  v.  Jenkins,  5 
Or.  447. 


460  Pleadings. 

Pleadings  (continued). 

Otherwise  where  the  amendment  does  not  change  the 
issue:  Kirk  v.  ^Matlock,  12  Or.  319;  Newberg  and 
Abrams  v.  Farmer,  1  W.  T.  182. 

Amendment  not  changing  issues  tried  in  County  Court 
may  he  allowed  on  aj^peal:  Jlonroe  v.  N.  P.  Coal  Min- 
ing'Co.,  5  Or.  509. 

Amendment  by  filing  written  reply  not  changitag  the 
issues  tried  in  Justice's  Court,  allowed  on  appeal:  Rohr 
V.  Isaacs,  8  Or.  451. 

Character  of  amendments  cannot  be  prescribed  by  the 
Supreme  Court  in  remanding  a  cause  to  the  Circuit 
Court:  Branson  v.  Oregonian  R'y  Co.,  11  Or.  IGl. 

Discretion  of  Circuit  Court  as  to  character  of  an)endment 
is  not  affected  by  the  fact  of  a  former  appeal:  Id. 

Error  in  refusing  to  allow  amendipent  by  filing  an  an- 
swer offered  is  waived  by  filing  another  omitting  the 
objectionable  feature:  Bowles  v.  Doble,  11  Or.  474. 

Discretion  of  Circuit  Court  over  amendments,  reviewable 
only  in  case  of  abuse:  Id.;  Ilexter  v.  Schneider,  14  Or. 
184. 

An  amended  answer,  same  as  former  answer  but  omitting 
matters  demurred  to,  is  a  new  answer:  Wells  v.  Apple- 
gate,  12  Or.  208. 

When  amended  answer  is  filed,  the  former  one  and  all 
motions  and  demurrers  relating  thereto  are  withdrawn, 
and  cease  to  be  a  part  of  the  record:  Id. 

Complaint,  indefinite  as  to  whether  in  contract  or  tort, 
where  the  facts  sustain  an  action  on  contract,  may  be 
so  amended  as  to  sustain  an  attachment  already  issued: 
Suksdorff-  v.  Bigham,  13  Or.  369. 

Amendment  to  coniplaint  enlarging  the  demand,  in  the 
absence  of  fraud,  and  where  no  new  cause  of  action  is 
thereby  added,  does  not  invalidate  an  attachment  in 
the  action:  Id. 

Great  liberality  of  amendment  should  be  allowed  under 
the  Code:  Swift  v.  Mulkcy,  14  Or.  59;  New'berg  and 
Abrams  v.  Farmer,  1  W.  T.  1S2. 

Filing  amended  answer  waives  objection  to  a  ruling  of  the 
court  striking  out  former  answer:  Ilexter  v.  Schneider, 
14  Or.  184. 

It  seems,  where  a  plaintiff  fails  to  prove  his  case  as  to 


Pleadings.  461 

Pleadings  (continued). 

some  of  several  defendants  in  an  action  for  tort,  he  can, 
on  the  trial,  amend  by  omitting  them:  Cooper  v.  Blair, 
14  Or.  255. 

Copy  of  pleading  amended  need  not  be  served,  unless  the 
court  so  orders:  Williams  &  Co.  v.  Miller  &  Co.,  1  W.  T. 
88. 

Where  a  party  demurs,  and  the  court  orders  amended 
pleading  filed,  such  order  in  effect  sustains  the  demur- 
rer: Id. 

If  demurrer  to  defective  complaint  is  overruled,  and  de- 
fendant answers  over,  the  complaint  will  be  deemed  by 
the  appellate  court  to  have  been  amended  in  all  re- 
spects in  which  it  could  have  been  amended:  Ward  v. 
^loorey,  1  W.  T.  104. 

Refusal  of  court  to  allow  amendments  on  appeal  from 
Justice's  Court  not  changing  the  issues  tried  is  error: 
Newberg  and  Abrams  v.  Farmer,  1  W.  T.  182. 

Such  proposed  amendment  of  a  pleading  must  be  made 
clearly  to  .ppear  to  the  Supreme  Court  before  it  will  re- 
view the  action  of  the  District  Court  refusing  to  allow 
the  same:  Id. 

When  demurrer  has  been  sustained,  amendment  should  be 
allowed  if  the  pleading  be  amendable,  especially  where 
honest  endeavor  may  be  secured  by  imposition  of  terms: 
Renton  v.  St.  Louis,  1  W.  T.  215. 

Filing  amended  complaint,  after  saving  exception  to  the 
sustaining  of  the  demurrer  to  the  complaint,  does  not 
waive  the  objection:  Wood  v.  Mastick,  2  W.  T.  64. 
9.    Demurrer. 

Multifariousness  was  subject  to  demurrer  before  the  Code: 
White  V.  Delschneider,  1  Or.  254. 

Lies  in  equity  for  misjoinder  of  parties  defendant:  Id. 

Eri:or  in  sustaining  or  overruling  demurrer  is  waived  by 
pleading  over:  Huffman  v.  McDaniel,  1  Or.  259;  Rich- 
ards V.  Fanning,  5  Or.  356;  Wells  v.  Applegate,  12  Or. 
208;  Ward  v.  Moorey,  1  W.  T.  104. 

Demurrer  to  whole  complaint  will  be  overruled  if  one 
cause  of  action  therein  be  well  pleaded:  Ketchum  v. 
State,  2  Or.  103;  Toby  v.  Ferguson,  3  Or.  27;  Simpson 
V.  Prather,  5  Or.  86;  Lafleur  and  Isaacs  v.  Douglass,  1 
W.  T.  185. 


462  Pleadings. 

Pleadings  (continued). 

Demurrer,  and  not  motion  to  strike  out,  the  remedy  against 
insufficient  statement  of  facts:  Cline  v.  Cline,  3  Or.  355. 

Failure  to  demur  does  not  waive  objection  that  complaint 
does  not  state  cause  of  action:  Brown  v.  Emmerson,  3 
Or.  452;  King  and  Lownsdale  v.  Boyd,  4  Or.  326;  Evarts 
V.  Steger,  5  Or.  147;  Mack  v.  Salem,  6  Or.  275;  Olds  v. 
Gary,  13  Or.  362. 

Defense  sufficient  as  pleaded,  though  false,  cannot  be 
reached  by  demurrer:  Torrence  v.  Strong,  4  Or.  39. 

Objection  that  court  has  no  jurisdiction  is  not  waived  by 
failure  to  demur:  King  and  Lownsdale  v.  Boyd,  4  Or. 
326. 

Overruling  of  demurrer,  when  waived  by  answering  over, 
cannot  be  assigned  as  error:  Richards  v.  Fanning,  5  Or. 
356;  Olds  v.  Gary,  13  Or.  362. 

Failure  to  demur  waives  irregularity  not  jurisdictional  in 
pleading  counterclaim:  Scheland  v.  Erpelding,6  Or.  258. 

Demurrer  on  the  ground  that  the  cause  is  barred  by  a 
statute  of  limitations,  lies  only  when  the  pleading  shows 
the  fact  on  its  face:  Weiss  v.  Bethel,  8  Or.  522;  Wilt  v. 
Buchtel,  2  W.  T.  417. 

Pleading  to  the  merits,  in  equity,  without  objecting  by  de- 
murrer or  answer  that  plaintiff  has  a  remedy  at  law, 
waives  such  objection:  Kitcherside  v.  Myers,  10  Or.  21. 

Defective  description  of  land  by  natural  objects,  not  am- 
biguous on  the  face  of  the  complaint,  cannot  be  reached 
by  demurrer:  Ladd  and  Tilton  v.  Mason,  10  Or.  308. 

When  upon  the  face  of  the  complaint  it  appears  that  other 
parties  are  necessary,  demurrer  for  defect  of  parties  is 
proper;  if  too  many  parties,  demurrer  as  not  stating 
facts  sufficient:  Gohen  v.  Ottenheimer,  13  Or.  220. 

** Multifariousness"  is  term  unknown  to  the  Gode;  in  de- 
murrer may  be  held  to  mean  misjoinder  of  several  causes 
of  action:  Id. 

Demurrer  cannot  be  stricken  out  on  motion:  Id. 

Demurrer  for  misjoinder  of  causes  of  action  being  sus- 
tained, a  new  pleading  must  be  filed:  Id. 

Demurrer  is  not  an  absolute  admission  of  the  facts,  but 
raises  an  issue  of  law  i:pon  the  facts  pleaded:  Rice  v. 
Rice,  13  Or.  337. 

Demurrer  to  a  complaint  in  a  divorce  suit  is  not  such  ad- 


Pleadings.  463 

Pleadings  (continued). 

mission  of  the  charge  as  is  meant  by  section  494  of  the 
Civil  Code  (sec.  498,  Hill's  A.  L.):  Id. 

Demurrer  to  complaint  in  action  on  an  injunction  bond, 
which  fails  to  allege  that  the  injunction  was  wrongful, 
or  without  sufficient  ca.use,  should  be  sustained,  but 
answering  over  waives  the  defect:  Olds  v.  Gary,  13  Or. 
3G2. 

That  statute  of  limitations  has  run,  unless  full  time  has 
expired,  is  no  ground  for  demurrer,  though  the  suit  be 
in  equity:  Id. 

Misjoinder  of  causes  of  action,  where  the  plaintiffs  rely  on 
allegations  of  fraudulent  misrepresentations  which  do 
not  appear  to  have  been  made  to  them  as  a  class,  is 
ground  for  demurrer:  Id. 

If  party  demurs,  and  court  orders  amendment,  such  order 
is  in  effect  a  sustaining  of  the  demurrer:  Williams  & 
Co.  V.  Miller  &  Co.,  1  W.  T.  88. 

Demurrer  under  Code  is  neither  the  general  nor  special  de- 
murrer at  common  law;  it  is  a  new  creation,  with  no 
applicability  except  in  the  instances  expressed  in  the 
statute:  Renton  v.  St.  Louis,  1  W.  T.  215. 

Demurrer  to  a  common-law  form  of  pleading  is  rarely  ap- 
plicable under  the  Code,  though  such  pleading  is  gen- 
erally obnoxious  to  motions:  Id. 

Right  of  demurrer  is  lost  by  answering,  and  objections 
must  be  taken  by  some  other  method:  Id. 

Demurrer  must  distinctly  specify  the  grounds:  Id. 

Where  demurrer  to  complaint  is  sustained  and  exception 
saved,  the  objection  is  not  waived  by  going  to  trial  on 
an  amended  complaint:  Wood  v.  Mastick,  2  W.  T.  64. 
10.   Supplemental  Pleadings. 

Supplemental  answer  in  the  nature  of  a  plea  puis  darrein 
continuance  is  not  a  waiver  of  former  pleas,  unless  in- 
consistent: Hamlin  v.  Kinney,  2  Or.  91. 

Material  facts  not  existing  at  commencement  of  suit  may 
be  set  up  by  supplemental  answer:  White  v.  Allen,  3 
Or.  183. 

Such  answer,  and  an  amendment  setting  up  facts  known 
fit  time  of  filing  original,  distinguished:  Ilolladay  v. 
Elliott,  3  Or.  340. 

Attaching  creditor,  who  has  obtained  temporary  restrain- 


464  Pleadings. 

Pleadings  (continued). 

ing  order  against  foreclosure  of  fraudulent  chattel  mort- 
gage, should,  on  obtaining  judgment  on  his  claim,  be 
allowed  to  file  supplemental  bill  in  the  injunction  suit 
showing  the  rendition  of  such  judgment:  Meacham 
Arms  Co.  v.  Swarts,  2  W.  T.  412. 
Pledges.  See  Bailments. 
Police  Judge. 

Police  judge  may  be  given  powers  of  justice  of  the  peace 
within  the  city,  but  his  jurisdiction  cannot  be  limited 
to  criminal  cases:  State  v.  Wiley,  4  Or,  184. 

His  jurisdiction  is  identical  with  justice  in  civil  as  well 
as  in  criminal  cases:  Id.;  Portland  v.  Denny,  5  Or.  160. 

Has  jurisdiction  of  all  crimes  defined  by  any  ordinance 
of  the  city:  Portland  v.  Denny,  5  Or.  160. 

Is  .entitled  to  his  salary  as  compensation  in  city  cases,  and 
the  fees  earned  as  justice  besides:  Id. 

Legislature  has  power  to  fix  compensation;  construction 
of  charter  as  to  fees  in  state  cases:  Adams  v.  Multnomah 
Co.,  6  Or.  116. 
Policemen.     See  Offices  and  Officers. 

Possession.     See  Adverse  Possession;  Forcible  Entry  and 
Detainer;  Liens;  Notice;  Mortgages;  Public  Lands. 

Possessory  rights  of  settlers  on  public  lands  may  be  pro- 
tected from  invasion  against  one  having  no  better  title: 
Woodsides  v.  Rickey,  1  Or.  108;  Lee  v.  Simonds,  1  Or. 
158;  Colwell  v.  Smith,  1  W.  T.  92;  Ward  v.  Moorey, 
1  W.  T.  104. 

In  action  for  recovery  of  real  property,  every  presumption 
is  in  favor  of  the  possessor:  McEwen  v.  Portland,  1  Or. 
300. 

Possession  is  notice  of  equitable  rights  in  the  property 
sufficient  to  put  purchaser  on  inquiry:  Stannis  v. 
Nicholson,  2  Or.  333;  Bohlman  v.  Cofiin  and  Carter 
4  Or.  313;  Skellinger  v.  Smith,  1  W.  T.  369. 

Of  note  by  maker  is  presumption  of  payment:  Hedges  v. 
Strong,  3  Or,  18. 

Quiet  and  exclusive  possession  is  evidence  of  title  until 
a  better  is  claimed  and  shown  by  another:  Or.  Cas. 
R.  R.  Co.  v.  Or.  Steam  Nav.  Co.,  3  Or.  178. 

Mortgagee  in  possession  has  the  right  to  foreclose  and  to 
remain  in  possession  until  paid,  though  an  action  to 


Possession.  465 

Possession  (continued). 

recover  the  debt  is  barred  by  the  statute  of  limitations: 
Anderson  v.  Baxter,  4  Or.  105;  Roberts  v.  Sutherlin,  4 
Or.  219. 
Possession  of  plaintiff,  to  entitle  him  to  maintain  suit  to 
quiet  title  under  section  500  of  the  Code   (sec.  504, 
Hill's  A.  L.),  must  be  lawful:  Tichenor  v.  Knapp,  6 
Or.  205. 
Possession,  relied  on  as  part  performance  where  contract 
to  convoy  land  was  not  in  writing,  must  be  visible  and 
exclusive,  and  taken  under  contract:  Brown  v.  Lord,  7 
Or.  302. 
Mortgagee  in  possession  is  estopped  to  deny  the  legality 
of  his  possession  when  sued  for  rents  and  profits:  Ren- 
shaw  V.  Taylor,  7  Or.  315. 
Possession  gained  without  consent  after  a  parol  promise 
to  lease  for  years   gives  possessor  no  rights:  Pulse  v. 
Hamer,  8  Or.  251. 
Possession  under  color  of  title  is  presumed  to  be  co-exten- 
sive  with   the   boundaries   in   the   deed:    Phillippi  v. 
Thompson,  8  Or.  428;  Joy  v.  Stump,  14  Or.  361. 
Constructive  possession  of  wild  lands  sufficient  under  sec- 
tion 500  of  the  Code  (sec.  504,  Hill's  A.  L.),  to  quiet 
title:  Thompson  v.  Woolf,  8  Or.  454. 
Possession  is  sufficient  evidence  of  title  to  sustain  conver- 
sion against  a  wrong-doer:  Krewson  Sz  Co.  v.  Purdom, 
13  Or.  5G3. 
But  semble,   that  possession   alone   is   not   sufficient  to 
authorize   recovery  of  value,  unless   accompanied   by 
claim  of  right:  Id. 
"Where  a  father  purchases  land  in  the  name  of  his  infant 
son,  and  goes  into  possession  and  improves,  his  posses- 
sion is  his  son's  possession:  Lawrence  v.  Lawrence,  14 
Or:  77. 
Possession  under  unacknowledged   deed   is  a  species  of 

actual  notice:  Manaudas  v.  Mann,  14  Or.  450. 
Possession  of  public  lands  by  settler  will  be  protected  by 
the  courts  from  time  of  entry:  Colwell  v.  Smith,  1  W. 
T.  92;  Ward  v.  Moorey,  1  W.  T.  104. 
Possession  as  tenant  or  intruder  presents  no  impediment 
to  transfer  of  title:  Bullene  v.  Garrison,  1  W.  T.  587. 

Ob.    Dig.— 30 


466  Practice. 

Practice.  See  Abatement;  Actions  and  Suits;  Administra- 
tion; Admiralty;  Affidavits;  Answers  and  Defenses; 
Appeal  and  Error;  Attachments;  Attorneys;  Bills  and 
Notes;  Complaints;  Contracts;  Corporations;  Costs 
and  Disbursements;  Criminal  Law;  Damages;  Depo- 
sitions; Divorce;  Dower;  Elections;  Eminent  Domain; 
Equity;  Evidence;  Executions,  and  Proceedings  Sup- 
plemental; Fees;  Filing  Papers;  Garnishment;  Habeas 
Corpus;  Injunctions;  Interpleader;  Judgment  Roll; 
Jury  and  Jury  Trial;  Justice  of  the  Peace;  Law  of  the 
Case;  Liens;  Lost  Papers;  Mandamus;  Mortgages; 
New  Trial;  Nonsuit;  Nuisance;  Parties;  Payment; 
Pleadings;  Quo  Warranto;  Reference;  Replevin;  Re- 
view, Writ  of;  Rules  of  Court;  Seals;  Summons; 
Tender;  Usury;  Variance;  Venue;  Witnesses. 

1.  Appearance. 

2.  Continuance. 

3.  Control  of  the  Court  over  Pleadings. 

4.  Stipulations. 

5.  Stay  of  Proceedings. 

6.  Payment  into  Court. 

7.  Trial  and  Incidents. 

8.  Trial  by  the  Court. 

9.  Orders. 

10.  Miscellaneous. 
1.  Appearance. 

Of  defendant  for  any  purpose  is  equivalent  to  service  of 
summons:  Rogue  River  Mining  Co.  v.  Walker,  1  Or. 
341. 

Voluntary,  does  not  waive  time  to  plead,  but  informality 
of  process  and  service  only:  Harker  v.  Fahie,  2  Or.  89. 

Defendant  appearing  by  counsel,  and  filing  answer,  can- 
not claim  want  of  means  to  employ  counsel,  as  excuse 
for  laches,  when  applying  to  court  for  leave  to  amend 
the  answer  by  setting  up  facts  known  at  the  time  of 
filing  the  original  answer:  Holladay  v.  Elliott,  3  Or. 
340. 

Docket  entry,  reciting  appearance,  evidence  will  not  be 
heard  in  collateral  action  to  show  the  appearance  was 
special;  withdrawal  of  appearance  cannot  oust  juris- 
diction: White  V.  Thompson,  3  Or.  115. 


Practice.  4G7 

Practice  (continued). 

Voluntary,  is  a  waiver  of  service  of  summons  and  com- 
plaint: White  V.  Northwest  Stage  Co.,  5  Or.  09. 

Parties  cannot  waive  service  of  notice  of  appeal  by  volun- 
tary appearance:  Oliver  v.  Harvey,  5  Or.  3G0;  Wolf  v. 
Smith,  G  Or.  73. 

Respondent  in  an  equity  suit  failing  to  appear  in  the  Su- 
preme Court  is  deemed  to  have  abandoned  the  appeal, 
and  appellant  is  entitled  to  a  reversal  on  making  a 
prima  facie  case:  Donegan  v.  Murphy,  6  Or.  436. 

The  appearing  and  answering  by  a  guardian  for  his  ward 
waives  irregularities  of  service:  Ankenv  v.  Blackiston, 
7  Or.  407. 

Recital  of  appearance  in  record  cannot  be  contradicted 
by  affidavits  on  appeal:  Cauthorn  v.  King,  8  Or.  138. 

Circuit  Court  has  jurisdiction,  on  appeal  from  justice,  of 
both  defendants,  where  both  appear  and  defend,  though 
judgment  below  was  against  one,  and  he  alone  appealed: 
Id. 

Appearance  by  garnishee  in  person  and  by  attorney  at  the 
hearing,  cures  a  defective  service  upon  the  garnishee: 
Carter,  Rice,  &  Co.  v.  Koshland,  12  Or.  492. 

Notice  of  appearance  under  section  520,  Civil  Code,  is  un- 
necessary, unless  the  right  of  attorney_to  appear  is  chal- 
lenged by  the  opposite  party:  Id. 

Appearance  and  filing  demurrer  waives  defects  of  service 
of  process:  Williams  &  Co.  v.  Miller  &  Co.,  1  W.  T.  88. 

Statute  does  not  permit  defendant  to  move  for  dissolution 
of  attachment  until  he  has  appeared  and  answered: 
Rodolph  V.  Mayer,  1  W.  T.  133. 

Jurisdiction  of  the  court  over  the  person  of  a  defendant 
cannot  be  questioned  after  appearance  and  answer  to 
the  merits:  Meigs  v.  Keach,  1  W.  T.  305. 

Defective  service  of  notice  is  waived  by  appearance  in  the 
Supreme  Court  on  error:  Schwabacher  v.  Wells,  1  W.  T 
506. 

Held,  that  the  defendant,  by  waiving  service  of  motion  to 
perfect  transcript,  without  protestation,  has  entered  gen- 
eral appearance:  Yesler  v.  Oglesbee,  1  W.  T.  604. 

Defendants  sued  under  a  firm  name  waive  the  defect  by 
appearing  and  pleading:  Baxter  &  Co.  v.  Scoland  and 
Jensen,  2  W.  T.  86. 


468  Practice, 

Practice  (continued). 

Filing  demurrer  constitutes  appearance  by  the  defendant, 
and  judgment  in  default  cannot  be  rendered  thereafter: 
W.  W.  P.  &  P.  Co.  V.  Budd,  2  W.  T.  336. 

Whether  District  Court  can  by  its  rules  make  service  on 
the  opposite  party  of  a  demurrer  filed  with  the  clerk, 
essential  to  an  appearance,  in  view  of  section  72  of  the 
Codeof  1881,  doubted:  Id. 
2.   Continuance, 

Where  it  was  not  shown  that  there  was  reasonable  expec- 
tation of  procuring  the  evidence  at  the  next  term,  con- 
tinuance denied:  State  v.  Leonard,  3  Or.  157. 

Witness  having  no  fixed  residence,  clear  showing  of  prob- 
ability of  obtaining  his  testimony  must  be  shown:  Id. 

Plaintiff  in  notice  of  contest  of  election  cannot  on  motion 
obtain  hearing  at  earlier  day:  Myers  v.  Warner,  3  Or. 
212. 

Issues  with  some  of  defendants  not  being  made  up,  motion 
by  plaintiff  for  continuance  premature:  McCown  v. 
Hannah,  3  Or.  302. 

On  death  of  party,  his  representatives  cannot  appeal  until 
they  obtain  an  order  allowing  continuance  in  their 
names:  Dick  v.  Kendall,  6  Or.  166. 

Application  for  such  order  made  within  one  year  is  in  time, 
although  the  order  allowing  the  continuance  of  the  suit 
by  them  is  not  made  until  after  the  expiration  of  a  year: 
Id. 

Suit  is  suspended  during  the  time  from  the  death  to  the 
allowance  of  the  order,  and  such  time  is  not  any  part 
of  the  period  allowed  for  appeal:  Id. 

After  trial  commences,  it  is  within  the  discretion  of  the 
court  to  adjourn  to  future  time  to  enable  a  party  to  ob- 
tain certain  written  evidence:  Young  v.  Patton,  9  Or. 
195. 

Continuance  cannot  be  claimed  as  a  right  in  a  divorce 
suit  by  party  negligently  allowing  her  time  to  take  tes- 
timony to  expire:  Savage  v.  Savage,  10  Or.  331. 

Granting  or  refusing  continuance  is  discretionary,  and 
not  reviewable  on  appeal:  State  v.  O'Neil,  13  Or.  183; 
Thompson  v.  Territory,  1  W.  T.  547. 

Afii davit  for,  must  state  the  facts  upon  which  belief  that 
witness  can  be  had  is  founded:  Id. 


Practice.  469 

Practice  (continued). 

Due  diligence  must  be  shown  in  procuring  testimony,  to 
entitle  party  to  a  continuance:  Roeder,  Peabody,  &  Co. 
V.  Brown,  1  W.  T.  112. 
Same  showing  must  be  made  in  criminal  as  in  other  cases: 

Thompson  v.  Territory,  1  W.  T.  547. 
Defendant  is  not  entitled  to  a  continuance  as  a  matter  of 
right  under  section  7  of  the  Criminal  Practice  Act:  Id. 
4.   Stipulations. 

Stipulation  is  construed,  and  intention  ascertained  from 

the  language  used:  Groslouis  v.  Northcut,  3  Or.  394. 
Stipulation  that  party  was  divorced  in  a  certain  suit  is  an 
admission  of  jurisdiction  of  the  court  to  grant  the  di- 
vorce: Id. 
Parties  cannot  stipulate  to  waive  notice  of  appeal,  and 
give  the  court  jurisdiction:  Oliver  v.  Harvey,  5  Or.  360. 
Stipulation  as  to  submission  of  cause  to  court  without 
jury  for  trial  during  vacation  construed:   Arrigoni  v. 
Johnson,  6  Or.  167. 
When  the  facts  are  stipulated  in  a  trial  by  the  court  with- 
out jury,  no  findings  of  fact  are  necessary:  Frush  v. 
East  Portland,  6  Or.  281. 
Testimony  may  be  taken   by  referee  appointed    by  the 
court  at  request  of  parties,  and  the  cause  tried  in  vaca- 
tion if  so  stipulated;  Roy  v.  Horsley,  6  Or.  382. 
Stipulation  for  a  decree,  entered  into  by  some  of  the  par- 
ties, affecting  the  final  disposition  of  property  rights  of 
all  the  parties  to  a  suit,  cannot  be  enforced:  Adams  v. 
Wilson,  6  Or.  391. 
8.   Control  of  the  Court  over  Pleadings. 

On  appeal  from  default  in  County  Court,  defendant  can- 
not put  in  answer:  Cain  v.  Harden,  1  Or.  360. 
Abatement  should  be  pleaded  in  separate  answer,  and  dis- 
posed of  before  answer  to  merits:  Hopwood  v.  Patter- 
son, 2  Or.  49. 
No  amendments  which  change  the  issues  tried  in  Justice's 
Court  are  allowed  in  Circuit  Court:  Moser  v.  Jenkins, 
5  Or.  447;  Newberg  and  Abrams  v.  Farmer,  1  W.  T. 
182. 
But  amendment  not  changing  the  issues   may  be  al- 
lowed; Kirk  v.  Matlock,  12  Or.  319. 


470  Practice. 

Practice  (continued). 

And  an  amendment  not  changing  issues,  tried  in  County 
Court  may  be  allowed:  Monroe  v.  N.  P.  Coal  Mining 
Co.,  5  Or.  509. 

Reply  may  be  filed  to  counterclaim  in  answer  in  Circuit 
Court,  though  in  Justice's  Court  it  was  made  orally, 
and  not  entered  in  the  docket:  Rohr  v.  Isaacs,  8  Or. 
451. 

Supreme  Court  may  remand  a  case,  with  leave  to  amend 
pleadings  in  court  below:  Branson  v.  Or.  R'y  Co.,  10 
Or.  278. 

The  power  of  the  Circuit  Court,  in  regard  to  the  nature 
and  extent  of  the  amendments,  is  not  affected  by  the 
facts  that  the  case  was  so  remanded,  and  Supreme 
Court  has  no  power  to  prescribe  their  character:  Bran- 
son V.  Or.  R'y  Co.,  11  Or.  161.      ' 

Court  cannot  make  a  suit  in  equity  out  of  facts  alleged, 
as  in  an  action  at  law:  Knowles  v.  Herbert,  11  Or.  54; 
S.  C,  11  Or.  240;  Beacannon  v.  Liebe,  11  Or.  443. 
'  Judgment  on  the  pleadings,  except  upon  failure  to  reply, 

condemned  as  bad  practice:  Bowles  v.  Doble,  11  Or. 
474. 
I  Court  has  no  right,  after  erroneously  entering  default,  and 

refusing  to  set  same  aside  on  showing  made,  to  give  effect 
to  a  stipulation  allowing  defendant  to  plead  upon  waiv- 
ing defense  of  statute  of  limitations:  Mitchell  v.  Camp- 
bell, 14  Or.  454. 

When  the  court  directs  amendment  of  a  pleading,  copy 
need  not  be  served  unless  so  ordered:  Williams  &  Co. 
V.  Miller  &  Co.,  1  W.  T.  88. 

Qussre,  whether  by  stipulation,  without  order  of  court, 
time  for  filing  transcript  on  appeal  can  be  enlarged: 
Peterson  v.  Foss,  12  Or.  81. 

Stipulation  to  waive  defense  of  statute  of  limitations,  upon 
leave  to  plead,  after  default  has  been  erroneously  en- 
tered, and  the  court  has  declined  to  set  the  same  aside, 
is  forced  from  the  defendant,  and  he  is  not  bound  by 
it:  Mitchell  v.  Campbell,  14  Or.  454. 

Quxre,  whether  in  any  event  such  stipulation  will  stand, 
although  made  upon  sufiicient  consideration:  Id. 
5.   Stay  of  Proceedings. 

Doctrine  of  parol  demurrer  is  not  recognized  in  Oregon: 
English  V.  Savage,  5  Qr.  518. 


Practice.  471 

Practice  (continued). 

When  an  undertaking  for  stay  of  proceedings  on  appeal 
has  been  filed,  the  Circuit  Court  may  order  recall  of 
execution  issued:  Bentley  v.  Jones,  8  Or.  47. 

To  prevent  surprise  or  injustice,  court  on  proper  showing 
might  stay  the  proceedings,  where  sheriff  has  made  a 
false  return,  regular  on  its  face,  until  the  question  of 
the  return  is  settled:  Washington  Mill  Co.  v.  Kinnear, 
1  W.  T.  99. 

6.  Payment  into  Court. 

Money  paid  into  court  under  protest,  in  action  to  condemn 
land,  was  upon  motion  ordered  paid  to  the  parties  en- 
titled to  it:  HoUaday  v.  Elliott,  3  Or.  341. 

Tender  and  payment  into  court  in  such  case  is  an  admis- 
sion of  damages  to  the  amount  tendered,  and  the  money 
paid  in  belongs  to  the  defendant:  Oregon  R'y  &  Nav. 
Co.  V.  Oregon  Real  Estate  Co.,  10  Or.  444. 

But  does  not  preclude  defendant  from  defending  against 
the  recovery  of  any  greater  sum:  Simpson  v.  Carson,  11 
Or.  361. 

7.  Trial  and  Incidents. 

Charge  of  fraud  in  procuring  judgment  by  confession 
should  not  be  finally  determined  on  motion  and  affida- 
vits: Miller  v.  Oregon  City  Mfg.  Co.,  3  Or.  24. 

In  action  to  condemn  land,  the  issues  of  value,  and  whether 
the  land  is  subject  to  appropriation,  may  be  tried  to- 
gether by  consent:  Oregon  and  Cascade  R.  R.  Co.  v. 
Baily,  3  Or.  164. 

Under  the  statute,  they  are  distinct  defenses,  and  must  be 
made  in  separate  trials:  Oregon  Central  R.  R.  Co.  v. 
Wait,  3  Or.  428. 

Under  certain  pleadings  in  an  action  to  condemn  lands, 
defendant  allowed  to  open  and  close:  Oregon  and  Cal- 
ifornia R.  R.  Co.  V.  Barlow,  3  Or.  311. 

The  trial  includes  the  rendition  and  receiving  of  the  ver- 
dict: State  v.  Spores,  4  Or.  198. 

No  proof  of  damages  is  necessary,  where  judgment  is  ren- 
dered for  want  of  answer:  White  v.  Northwest  Stage 
Co.,  5  Or.  99.     But  see  Hadlan  v.  Ott,  2  W.  T.  165. 

How  exceptions  must  be  taken:  Richards  v.  Fanning,  5 
Or.  356;  Murray  v.  Murray,  6  Or.  17;  Kearney  v.  Snod- 
grass,  12  Or.  311. 


472  Pbactice. 

Practice  (continued). 

Error  to  exclude  testimony  of  witness  present  during  the 
examination  of  other  witnesses,  against  the  order  of  the 
court,  but  he  may  be  punished  for  contempt:  Hubbard 
V.  Hubbard,  7  Or.  42, 

Court  has  discretion  to  admit  evidence  on  promise  that 
the  same  will  be  subsequently  connected,  and  made  ad- 
missible: Bennett  v.  Stephens,  8  Or.  444. 

Error  to  permit  attorney,  against  objection,  in  his  argu- 
ment, to  assume  or  state  facts  not  proved:  Tenny  v. 
Mulvaney,  8  Or.  513. 

Where  the  objection  made  to  the  introduction  of  evidence 
was  specific,  all  other  grounds  are  waived:  Ladd  and 
Bush  V.  Sears,  9  Or.  244. 

Attorney,  in  opening  case  to  jury,  is  not  confined  to  gen- 
eral statement  of  the  issues,  but  nlay  detail  the  particu- 
lar facts  intended  to  be  proved:  Long  and  Spaur  v. 
Lander,  10  Or.  175. 

Use  of  diagram  by  witness,  not  introduced  in  evidence, 
but  shown  to  be  correct,  permissible:  Sheppard  v.  Yo- 
cum  and  De  Lashmutt,  10  Or.  402. 

Objection  to  proof  of  a  defense,  taken  at  trial,  on  the 
ground  that  the  allegation  is  defective,  held  bad  prac- 
tice; demurrer  or  motion  non  obstante  is  the  proper 
course:  Specht  v.  Allen,  12  Or.  117. 

Documentary  evidence  may  be  admitted  provisionally, 
and  instructions  as  to  their  effect  afterward  given: 
Smith  V.  Shattuck,  12  Or.  362. 

No  error  for  court  to  limit  counsel  to  less  than  two  hours 
in  argument  to  jury:  Hurst  v.  Burnside,  12  Or.  520. 

Attention  of  court  to  tampering  with  witness  must  be 
called,  to  be  available  on  appeal:  Tucker  v.  Flouring 
Mills  Co.,  13  Or.  28. 

It  is  the  duty  of  plaintiff  to  elect  which  defendants  he 
will  proceed  against,  where  several  are  improperly 
joined:  Tyler  v.  T.  of  T.  A.  &  P.  U.,  14  Or.  485. 

Where  the  facts  are  admitted,  entitling  plaintiff  to  dam- 
ages, merely  nominal  damages  will  be  adjudged  where 
he  moves  for  judgment  and  does  not  ask  for  trial:  Had- 
lan  V.  Ott,  2  W.  T.  1G5. 

Where  answer  admits  part  of  the  allegations  of  the  com- 
plaint, the  plaintiff  is  not  relieved  from  proving  the 


Practice.  473 

Practice  (continued). 

other  controverted  allegations:  Breemer  v.  Burgess,  2 
W.  T.  290. 

Where  part  of  the  items  of  plaintiff's  demand  is  admitted 
by  the  pleadings,  he  is  entitled  to  recover  interest  on 
such  items  from  the  commencement  of  the  action:  Id. 

If  the  court  committed  error  in  admitting  evidence,  the 
error  is  cured  by  withdrawing  such  evidence  from  the 
jury  in  the  charge:  P.  S.  I.  Co.  v.  Worthington,  2  W.  T. 
472. 
8.   Trial  by  the  Coukt. 

Findings  must  be  sufficient  to  sustain  the  judgment,  and 
must  cover  all  the  issues:  Fink  v.  Canyon  lload  Co.,  5 
Or.  301. 

Party  wishing  to  object  to  the  sufficiency  of  the  findings 
should  apply  to  the  Circuit  Court  for  further  and  more 
specific  findings,  or  procure  them  to  be  put  in  bill  of  ex- 
ceptions: Luse  V.  Isthmus  Transit  R'y  Co.,  6  Or.  125; 
Eakin  v.  McCraith,  2  W.  T.  112. 

Findings  need  only  cover  the  material  issues:  Philomath 
College  V.  ITartless,  6  Or.  158. 

Where  the  facts  are  stipulated,  no  findings  of  fact  are 
necessary:  Frush  v.  East  Portland,  6  Or.  281. 

Finding  of  fact  is  conclusive  upon  parties  to  the  suit  in 
favor  of  persons  not  parties:  Knott  v.  Knott,  6  Or.  334. 

Findings  are  as  a  verdict,  and  will  be  set  aside  in  the 
same  manner  and  for  the  same  reasons:  Ilallock  v. 
Portland,  8  Or.  29;  Phelps  v.  Steamship  City  of  Pan- 
ama, 1  W.  T.  518;  Tierney  v.  Tierney,  1  W.  T.  5G8; 
Bullene  v.  Garrison,  1  W.  T.  587;  Baker  and  Hamilton 
V.  McAllister,  2  W.  T.  48. 

General  finding  that  the  complaint  is  true  and  answer  un- 
true is  sufficient:  McFadden  v.  Friendly,  9  Or.  222. 

Findings  of  fact  and  law  are  "separately  stated"  when 
severable  and  distinct:  Weissman  v.  Russell,  10  Or.  73. 

Where  the  findings  cover  the  new  matter  in  the  answer,  a 
reply,  though  absent  from  the  record,  is  presumed  to 
have  been  filed:  Id. 

Ambiguous  finding  is  given  a  construction  that  accords 
with  pleadings  and  supports  judgment:  Whitlock  v. 
Manciet  and  Bignc,  10  Or.  166. 

Findings  of  court  below  or  referee  in  equity  cases  may  be 


474  Practice. 

Practice  (continued). 

reviewed  on  the  evidence  on  appeal:  Howe  v.  Patter- 
son, 5  Or.  353;  O'Leary  v.  Fargher,  11  Or,  225,  overrul- 
ing Fahie  v.  Lindsay,  8  Or.  474. 

On  waiver  of  jury  trial,  the  provision  of  the  Practice  Act 
requiring  court  to  state  separately  its  findings  of  fact 
and  law  does  not  apply  to  divorce  cases:  Madison  v. 
Madison,  1  W.  T.  60. 

Findings  of  fact  by  the  judge  answer  to  a  special  verdict, 
while  the  conclusions  of  law  are  in  the  nature  of  a  gen- 
eral verdict:  Willey  v.  Morrow,  1  W.  T.  475. 

Trial  by  court  in  a  law  case,  there  being  no  waiver  of  jury 
trial,  is  the  exercise  of  a  power  not  authorized  by  law: 
Johnson  v.  Goodtime,  1  W.  T.  484. 

In  divorce  cases,  being  a  proceeding  at  law,  the  findings 
of  the  court  are  as  the  verdict  of  a  jury,  and  not  to  be 
set  aside  unless  manifestly  contrary  to  the  evidence: 
Tierney  v.  Tierney,  1  W.  T.  568. 

Supreme  Court  will  not  reverse  a  finding  of  fact  if  there 
be  any  evidence  to  support  it,  though  said  court  would 
make  a  different  finding  if  it  were  an  open  question: 
Baker  and  Hamilton  v.  McAllister,  2  W.  T.  48. 

Where  the  findings  are  not  commensurate  with  the  issues, 
the  remedy  is  by  application  to  the  court  for  additional 
findings  not  appeal:  Eakin  v.  McCraith,  2  W.  T.  112. 

The  findings  may  be  amended  by  the  court  at  any  time 
before  judgment:  Calhoun  v.  Gilliland,  2  W.  T.  174. 
9.   Orders. 

Nunc  pro  tunc  order  correcting  record,  when  discretionary 
and  when  not:  Road  Co.  v.  Douglas  County,  5  Or.  406. 

A  contract  authorized  by  the  County  Court,  though  not 
in  the  form  of  an  order,  is  properly  entered  in  the 
journal:  Road  Co.  v.  Douglas  County,  6  Or.  299. 

Order  dissolving  or  refusing  to  dissolve  an  attachment  is 
a  final  order  from  which  an  appeal  lies:  Sheppard  v. 
Yocum,  11  Or.  234;  Suff"ern  v.  Chisholm,  1  W.  T.  486. 

When  the  rights  of  third  parties  have  not  intervened,  a 
court  may  amend  its  records  to  make  them  conform  to 
the  truth:  Carter,  Rice,  &  Co.  v.  Koshland,  12  Or.  492. 

Where  a  long  time  after  final  decree  is  entered  it  is  cor- 
rected by  a  nunc  pro  tunc  order,  it  seems  right  of  appeal 
runs  from  the  date  of  the  latter  order:  Lee  v.  Imbrie, 
X3  Or.  510. 


Practice.  475 

Practice  (continued). 

Judgments  nunc  pro  tunc  are  only  allowed  in  favor  of 
justice,  never  to  work  injustice:  Hays  v.  Miller,  1 
W.  T.  143. 

Judge  in  vacation  can  make  orders  nunc  pro  tunc  correct- 
ing record  of  prior  term  only  upon  express  statutory 
authority,  and  statute  must  be  strictly  followed:  Hale 
v.  Finch,  1  W.  T.  517. 

Order,  in  awarding  custody  of  and  fixing  allowance  for 
support  of  children  in  divorce  case,  is  interlocutory  and 
not  final:  Tierney  v.  Tierney,  1  W.  T.  568. 

Party  must  take  notice  of  all  orders  of  the  court,  and 
pleadings   filed  pursuant  thereto:  Williams  &  Co.  v. 
Miller  &  Co.,  1  W.  T.  88. 
10.   Miscellaneous. 

Record  must  show  affirmatively  that  defendant  was  served 
with  amended  complaint  to  sustain  judgment  thereon 
for  want  of  answer:  Tolmie  v.  Otchin,  1  Or.  95. 

No  evidence  receivable  in  Supreme  Court  in  admiralty 
cases:  Cutler  v.  Steamship  Columbia,  1  Or.  101;  Nickels 
V.  Griffin,  1  W.  T.  374;  contra,  Phelps  v.  S.  S.  City  of 
Panama,  1  W.  T.  615. 

On  motion  for  leave  to  file  answer  in  the  Circuit  Court 
after  default  below,  affidavits  cannot  be  heard:  Cain  v. 
Harden,  1  Or.  360. 

Reasonable  time  will  be  allowed  by  Circuit  Court  to  bring 
up  proceedings  by  certiorari:  Thompson  v.  Multnomah 
County,  2  Or.  34. 

When  the  account  sued  on  is  insufficiently  set  forth,  the 
defendant's  remedy  is  by  motion  to  make  more  definite: 
Flanders  v.  Ish,  2  Or.  320. 

Where  abatement  and  bar  were  pleaded  in  same  answer, 
defendant  was    compelled   to    elect:    Oregon   Central 
-R.  R.  Co.  v.  Wait,  3  Or.  91. 

On  motion  for  leave  to  answer  after  default,  verified  an- 
swer should  be  presented  with  the  motion:  White  v. 
Northwest  Stage  Co.,  5  Or.  99. 

An  action  is  pending  in  the  trial  court  until  appeal  is  per- 
fected, or  the  time  for  taking  appeal  has  elapsed:  Dick 
■  V.  Kendall,  6  Or.  166;  Garrison  v.  Cheeney,  1  W.  T.  489. 

Application  for  continuance  in  the  name  of  personal  rep- 
resentatives of  deceased  party  if  made  within  a  year  ia 


476  Practice. 

Practice  (continued). 

in  time,  though  the  order  be  not  made  until  after  the 
expiration  of  the  year:  Id. 
Power  of  a  court  of  equity,  where  attorney  is  guilty  of 
negligence  or  misconduct  to  the  rights  of  his  client,  to 
grant  relief  in  a  summary  manner:  Branson  v.  Or.  R'y 
Co.,  10  Or.  278. 
A  party  must  object  to  the  verification  of  an  account  fur- 
nished on  demand  within  a   reasonable  time,  or  the 
objection  is  waived:  Robbins  v.  Benson,  11  Or.  514. 
Where  remedy  is  not  pointed  out  by  Code,  suitable  pro- 
cess may  be  adopted  conformable  to  the  Code:  Aiken 
V.  Aiken,  12  Or.  203;  Carter,  Rice,  &  Co.  v.  Koshland, 
13  Or.  615. 
Courts  are  invested  with  large  discretionary  powers  in 

matters  of  practice:  Mitchell  v.  Campbell,  14  Or.  454. 
A  party  in  court  must  take  notice  of  all  orders  of  the 
court  in  the  case,  and  all  pleadings  filed:  Williams  & 
Co.  V.  Miller  &  Co.,  1  W.  T.  88. 
An  attorney  may  discontinue  a  suit  by  virtue  of  his  gen- 
eral power:  Simpson  v.  Brown  Bros.  &  Co.,  1  W.  T.  247. 
Right  of  court  to  refuse  to  hear  attorney  representing  dif- 
ferent parties  to  the  suit  whose  interests  are  conflict- 
ing: Id. 
Court  will  not  allow  issue  to  be  joined,  where  both  parties 
are  represented  by  the  same  attorney:  Clarke  Co.  v. 
Commissioners  of  Clarke  Co.,  1  W.  T.  250. 
Professional  confidence  once  reposed  cannot  be  divested 
by  expiration  of  the  professional  employment;    court 
refuses  to  hear  attorney  formerly  on  the  other  side  of 
the  case:  Nickels  v.  Gritfin,  1  W.  T.  374. 
Civil  practice  in  law  and  equity,  as  affected  by  the  sev- 
eral codes  successively  adopted,  and  by  the  rules  of 
the  Supreme  Court  of  the  United  States:  Garrison  v. 
Cheeney,  1  W.  T.  489. 
Practice  of  Medicine.     See  Physicians  and  Surgeons. 
Precincts.     See  Elections. 
Pre-emption.     See  Public  Lands. 
Preferences.     See  Assignment  for  Benefit  of  Creditors. 
Prescription.     See  Adverse  Possession;  Easements;  Water 

and  Wiitercourses. 
Presumptions.     See  Appeal  and  Error;  Evidence;  Juris- 
diction. 


Public  Lands.  477 

Principal  and  Agent.     See  Agency. 

Principal  and  Surety.     See  Suretyship. 

Prior  Appropriation.     See  Water  and  Watercourses. 

Priority.    See  Chattel  ^Mortgages;  Deeds;  Liens;  Mortgages. 

Privity.     See  Deeds;  Judgments  and  Decrees;  Notice. 

Probable  Cause.  See  Malicious  Prosecution;  Slander  and 
Libel. 

Probate  Courts.  See  Administration;  County  Courts; 
Courts;  Jurisdiction. 

Process.  See  Appeal  and  Error;  Attachments;  Executions, 
and  Proceedings  Supplemental;  Jurisdiction;  Practice; 
Summons. 

Professional  Skill.     See  Physicians  and  Surgeons. 

Promise  of  Marriage.     See  Marriage. 

Promissory  Notes.     See  Bills  and  Notes, 

Protest.     See  Bills  and  Notes. 

Provisional  Government.     See  Constitutional  Law. 

Public  Lands.  See  Constitutional  Law;  Dedication;  Emi- 
nent Domain. 

1.  Possession,  Pre-emption,  and  Purchasers'  Rights. 

2.  Town  Sites. 

3.  Mineral  Lands. 

4.  Donation  Act. 

5.  School  Lands. 

6.  Swamp  and  Tide  Lands. 

7.  Homesteads. 

8.  Patents  and  Certificates. 

1.    Possession,  Pre-emption,  and  Purchasers'  Rights. 
Courts  have  power  to  protect  settlers'  possessory  rights 

from  invasion:  Woodsides  v.  Rickey,  1  Or.  108;  Lee  v. 

Simonds,  1  Or.  158;   Colwell  v.  Smith,   1  W.  T.  92; 

Ward  V.  Moorey,  1  W.  T.  104. 
State   courts  entertain   no  proceedings   dependent  upon 
^acts  to  be  determined  in  the  United  States  land-office: 

Moore  v.  Fields,  1  Or.  317;  Colwell  v.  Smith,  1  W.  T. 

92;  Ward  v.  Moorey,  1  W.  T.  104;  Shockley  v.  Brown, 

1  W.  T.  463. 
Mere  possessor  who  abandoned  without  gaining  title  could 

not  charge  land  with  easement:  Lownsdale  v.  Portland, 
'  1  Or.  381. 
Rights  of  British  subjects  during  joint  occupancy  merely 

possessory:  Cowenia  v.  Hannah,  3  Or.  4G5. 


478  Public  Lands. 

Public  Lands  (continued). 

Effect  of  treaty  of  1846,  upon  rights  of  occupants:  Id.; 
Puget  Sound  Agricultural  Co.  v.  Pierce  Co.,  1  W.  T.  159. 

Counties  in  Oregon  cannot  pre-empt  land  for  county  seat 
under  act  of  May  26,  1824:  Whitlow  v.  Reese,  4  Or.  335. 

Grant  to  the  state,  by  act  of  1841,  operated  as  a  present 
grant  upon  admission  of  the  state  into  the  Union,  sub- 
ject to  future  selection  and  identification:  Wardwell  v. 
Paige,  9  Or.  517. 

Pre-emption  from  state,  omitted  by  treasurer  in  his  state- 
ment of  lands  sold,  may  be  proved  by  other  evidence: 
Id. 

Pre-emption  by  settler  on  state  lands  acquired  under  act 
of  Congress  of  September  4,  1841,  held  superior  to  title 
of  one  claiming  the  land  as  school  land:  Id. 

Notice  to  subsequent  purchasers  of  claims  of  pre-emptors 
need  not  be  proved;  rule  of  caveat  emptor  applies  to 
subsequent  purchasers:  Id. 

Pre-eraptor,  who  has  entered,  may  sell  before  patent  issues: 
Richards  v.  Snyder  and  Crews,  11  Or.  501. 

Treaty  of  1846,  adjusting  the  boundaries  and  rights  of  the 
United  States  and  Great  Britain,  and  expressly  pre- 
serving to  the  Puget  Sound  Agricultural  Company  its 
property  rights,  is  but  declaratory  of  the  law  of  nations 
in  the  latter  respect:  Puget  Sound  Agricultural  Co.  v. 
Pierce  Co.,  1  W.  T.  159. 

Possessory  and  property  rights  of  individuals  are  undis- 
turbed by  change  of  sovereignty:  Id. 

The  treaty  operated  to  vest  title  in  said  company,  as  a 
legislative  act  to  that  effect:  Id. 

The  fact  that  the  lands  had  not  been  segregated  from  the 
public  domain  would  not  prevent  title  from  vesting  in 
the  company:  Id. 

Though  the  legal  title  be  in  the  United  States,  the  com- 
pany has  such  equitable  interest  as  is  subject  to  taxa- 
tion: Id. 

Possessory  right  to  the  land  of  said  company,  the  title  to 
which  is  still  in  the  United  States,  is  a  good  defense  in 
action  of  ejectment  brought  by  lessee  of  the  company: 
Roberts  v.  Lucas,  1  \V.  T.  20-5. 

On  decease  of  intestate  pre-emptor,  whose  title  is  still 
inchoate,  a  salable  possessory  right  passes  to  the  ad- 


Public  Lands.  479 

Public  Lands  (continued). 

ministrator:  Burch  v.  McDaniel  and  Johnson,  2  W.  T. 
58. 

Duty  of  «uch  administrator  to  perfect  the  title  of  the  land 
in  favor  of  the' heirs:  Id. 

Aside  from  such  duty,  administrator  is  free  to  dispose  of 
the  possession  for  the  benefit  of  the  estate:  Id. 

Pre-emption  statutes  place  the  restriction  on  the  adminis- 
trator which  was  on  the  prc-emptor,  against  transferring 
any  interest  in  the  land;  Id. 

In  action  of  ejectment,  where  plaintiff  claims  under  certi- 
cate  of  purchase,  defendant  may  show  a  certain  state  of 
facts  by  reason  whereof  the  commissioner  caused  such 
certificate  to  be  canceled:  Hays  v.  Parker,  2  W.  T.  198. 

Where  in  the  course  of  trial  in  such  action  it  appears  that 
the  claims  of  the  parties  at  the  time  of  the  commence- 
ment of  the  action  were  being  waged,  and  not  fully  de- 
termined in  the  department  of  the  interior,  the  action 
should  bo  dismissed  at  plaintiff's  cost:  Id. 

Decision  of  the  secretary  of  the  interior  upon  mixed  ques- 
tions of  law  and  fact  properly  presented  for  his  decision 
cannot  be  reviewed  in  a  court  of  equity,  fraud  or  mis- 
take not  being  alleged:  Starks  v.  Brown,  2  W.  T.  426. 

2.  Town  Sites. 

Town-site  act  of  Congress,  passed  May  23, 1844,  not  appli- 
cable to  Oregon  before  1854:  Marlin  v.  T 'Vault,  1  Or. 
77;  Lownsdale  v.  Portland,  1  Or.  381;  Starr  v.  Stark,  2 
Or.  118;  Whitlow  v.  Reese,  4  Or.  336. 

By  entry  and  payment  under  town-site  act,  town  became 
at  once  vested  with  legal  title  in  trust:  Eakin  v.  Mc- 
Craith,  2  W.  T.  112. 

3.  Mineral  Lands. 

Rights  of  occupancy  under  act  gf  Congress  of  July  26, 

0866:  Gold  Hill  Q.  M.  Co.  v.  Ish,  5  Or.  104. 
Provisions  relative  to  pre-emption  not  obligatory:  Id. 
Patent  for  agricultural  land  does  not  pass  known  deposits 

of  precious  metals:  Id. 
Failure  of  government  surveyors  to  segregate  mining  land 

from  agricultural  land  does  not  defeat  rights  of  occu- 

'pant  miners:  Id. 

4.  Donation  Act. 

Land  settled  as  town  sites  may  be  held  as  donations: 
Marlin  v.  T 'Vault,  1  Or.  77. 


480  Public  Lands. 

Public  Lands  (continued). 

Settler  with  Indian  wife  is  "married"  man  within  the 
fourth  section  of  the  act:  Vandolf  v.  Otis,  1  Or.  153. 

Residence  is  determined  by  the  facts  in  each  case:  Lee  v. 
Simonds,  1  Or.  158. 

Claim  need  not  be  in  "compact  form"  to  enable  courts  to 
protect  possessory  rights;  and  whether  it  be  in  such  form 
will  be  left  to  the  determination  of  the  land-office:  Id. 

If  settler  die  before  the  law  took  effect,  his  heirs  do  not 
inherit  or  hold  by  virtue  of  his  residence  or  cultivation: 
Ford  V.  Kennedy,  1  Or.  167;  Cowenia  v.  Hannah,  3  Or. 
4G5;  Newton  v.  Spencer,  3  Or.  548. 

Occupant  cannot  be  dispossessed  by  action  at  law  before 
the  completion  of  his  residence  and  cultivation,  when  the 
surveyor-general  has  determined  contest  in  his  favor: 
Pin  V.  Morris,  1  Or.  230. 

Donee  may  maintain  action,  under  the  statute,  for  the  re- 
covery of  real  property,  against  one  who  shows  no  title 
except  possession:  Keith  v.  Cheeny,  1  Or.  285. 

If  wife  die  before  compliance  with  act,  without  issue,  hus- 
band does  not  take  her  half  of  the  claim:  Johnson  v. 
McGinniss,  1  Or.  292;  White  v.  Allen,  3  Or.  103. 

Donation  law  was  the  first  act  of  Congress  affecting  pub- 
lic lands  in  Oregon:  Lownsdale  v.  Portland,  1  Or.  381. 

Mere  possessor  prior  to  September  27,  1850,  who  aban- 
doned land,  could  charge  it  with  no  easement:  Id. 

Dedication  prior  to  time  law  took  effect  void,  title  being 
in  the  United  States:  Leland  v.  Portland,  2  Or.  46. 

Claimant  must  set  land  apart  by  boundaries,  and  a  change 
of  location  is  abandonment:  Carter  v.  Chapman,  2  Or. 
93. 

What  residence  and  cultivation  sufficient:  Starr  v.  Stark, 
2  Or.  118. 

Rights  of  donee  under  the  donation  law:  Lee  v.  Summers, 

2  Or.  260;  Brazee  v.  Schofield,  2  W.  T.  209. 

Settler  on  land  before  law  took  effect  has  sufficient  inter- 
est to  be  able  to  attack  patent  to  the  land  issued  to  one 
not  entitled:  White  v.  Allen,  3  Or.  103. 

Claimant,  before  patent,  has  an  interest  subject  to  judicial 
sale:  Groslouis  v.  Northcut,  3  Or.  394. 

On  death  of  settler  before  proof  made,  his  right  descends 
to  his  heirs,  who  may  make  proof:  Delay  v.  Chapman, 

3  Or.  459. 


PoBLic  Lands.  481 

Public  Lands  (continued). 

The  right  so  acquired  by  the  heirs  is  not  an  estate  which. 
could  be  encumbered  or  administered  upon:  Id. 

When  such  licirs  prove  and  obtain  patent,  they  take  by 
purchase,  not  by  inheritance:  Id. 

After  heirs  obtain  patent,  they  have  an  estate  which  they 
can  encumber,  ahen,  or  devise:  Id. 

In  the  estate  acquired,  or  to  be  acquired,  by  such  heirs, 
the  administrator  has  no  right  or  interest:  Id. 

British  subject  in  possession  under  treaty  of  1846  gains 
no  rights  by  donation  law:  Cowenia  v.  Hannah,  3  Or. 
4G5. 

The  act  makes  no  provision  for  one  dying  before  its  pas- 
sage; it  only  provides  for  persons  in  esse:  Id. 

Descent  of  lands  granted  under  section  5  of  the  act,  not 
limited  by  section  4:  Chambers  v.  Chambers  and 
Maury,  4  Or.  153. 

Lands  granted  under  section  5  of  said  act  descend  ia 
accordance  with  the  provisions  of  the  statute  of  de- 
scents and  the  common  law:  Id. 

Act  operated  as  a  present  grant,  and  vested  in  donee  the 
fee,  subject  to  conditions  subsequent:  Blakesly  v.  Cay- 
wood,  4  Or.  279;  Dolph  v.  Barney,  5  Or.  191. 

Though  under  the  fourth  section  of  the  act,  no  alien  is 
entitled  to  patent  until  naturalized,  the  grant  is  not 
void  where  before  patent  issues  alien  dies  before 
naturalization,  and  his  heir  takes:  Id. 

The  right  of  the  wife  to  one  half  of  the  claim  does  not 
depend  on  the  number  of  acres  taken:  Jette  v.  Picard,. 
4  Or.  296. 

Upon  compliance  with  the  requirements,  the  title  vests  by- 
virtue  of  the  act  itself:  Dolph  v.  Barney,  5  Or.  191;. 
Brazee  v.  Schofield,  2  W.  T.  209;  Maynard  v.  Hill,  2 

^y^.  321. 

Title  may  be  conveyed  before  patent,  after  the  require- 
ments have  been  complied  with:  Id.;  Ramsey  v. 
Loomis,  6  Or.  367. 

Sale  by  man  and  wife  before  patent  binds  heirs  of  wife  to 
whom  her  patent  subsequently  issues:  Id. 

The  t\venty-second  section  embraces  two  classes  of  widows 
capable  of  taking:  Blachley  v.  Butler,  5  Or.  463. 

Wife's  interest  and  right  is  perfected  in  her  by  virtue  of 

Ok.  Dig.— 31 


482  Public  Lands. 

Public  Lands  (continued). 

residence  and  cultivation  without  further  act:  Murray 
V.  Murray,  6  Or.  26;  Springer  v.  Young,  14  Or.  280. 

Wife's  right  under  the  Donation  Act  is  not  affected  by  the 
repeal  of  the  act  of  the  legislature  of  1852,  which  pro- 
vided that  her  interest  should  be  under  her  separate 
control:  Linnville  v.  Smith,  6  Or.  202. 

Land  claimed  under  the  act  is  "  segregated  "  when  the 
notification  is  filed:  Ramsey  v.  Loomis,  6  Or.  367. 

Widow  is  entitled  to  dower  in  husband's  claim,  conveyed 
by  him  after  complying  with  the  act,  but  before  he 
received  a  patent:  McKay  v.  Freeman,  6  Or.  449. 

Otherwise,  where  the  residence  and  cultivation  were  not 
complete  before  husband's  death:  Farris  v.  Hayes,  9 
Or.  81. 

Holder  of  title  bonds  to  donatio^  claim  has  suflScient 
estate,  before  patent,  to  redeem  at  tax  sale:  Rich  v. 
Palmer,  7  Or.  133. 

Dower  attaches  in  favor  of  widow,  under  section  4,  where 
husband  dies  after  residence  and  cultivation,  before 
securing  a  patent:  Love  v.  Love,  8  Or.  23. 

Husband's  estate,  after  four  years'  cultivation,  and  before 
patent,  descends  to  the  children,  and  the  wife  takes  her 
half  and  dower  in  the  husband's  half:  Id. 

Bond  for  deed,  made  prior  to  September  27,  1850,  can  be 
enforced  against  obligee  after  he  obtains  patent:  Parker 
v.  Rogers,  8  Or.  183. 

Claimant  under  Donation  Act,  conveying  before  patent  by 
deed  with  covenants  for  further  assurance  of  title,  after 
patent  holds  naked  legal  title:  Baker  v.  Woodward,  12 
Or.  3. 

Amendment  of  1870,  to  section  378,  Civil  Code  (sec.  382, 
Hill's  A.  L.),  respecting  limitations  of  actions  between 
claimants,  was  intended  to  apply  only  to  controversies 
arising  under  section  501,  between  rival  claimants  to 
the  same  tract  as  patentees:  Id. 

Conveyance  by  deed,  without  covenants,  of  riparian 
rights,  by  claimant,  before  completion  of  his  term  of 
residence  and  cultivation,  passes  no  title:  McCann  v. 
Oregon  R'y  etc.  Co.,  13  Or.  455. 

Title  of  husband  in  lands,  purchased  in  his  name  with 
proceede  of  sale  of  his  own  and  the  wife's  half  of  dona- 


Public  Lands.  483 

Public  Lands  (continued). 

tion  claim,  is  subject  to  an  implied  trust  in  favor  of 
wife  for  an  undivided  half:  Springer  v.  Young,  14  Or. 
280. 

No  evidence  in  this  case  to  show  that  donation  claimant 
was  without  heirs  capable  of  taking  his  estate:  Ward 
V.  :Moorey,  1  W.  T.  104. 

The  oath  required  under  section  12  of  the  act  may  be 
taken  at  time  of  final  proof:  Id. 

Dower  extends  to  donation  claims;  the  right  of  eminent 
domain  reserved  does  not  defeat  the  right  of  dower 
therein:  Ebey  v.  Ebey  and  Beam,  1  W.  T.  185. 

Plaintiff  claiming  under  Donation  Act  need  not  set  forth 
in  his  complaint  that  the  land  was  not  within  a  mile 
of  a  military  post  or  reservation.  If  advantage  is  to  be 
taken  of  this  fact,  it  must  be  as  a  defense:  Shockley  v. 
Brown,  1  W.  T.  464. 

Title  could  not  be  acquired  before  1850,  without  first  mak- 
ing affidavit  to  the  several  requirements  prescribed  by 
section  12  of  the  act:  Id. 

Complaint  seeking  to  establish  title  under  the  act  must 
allege  compliance  with  the  several  requirements  under 
section  12  of  the  act:  Id. 

Period  of  residence  accepted  by  the  United  States,  as 
compliance  on  the  part  of  the  settler,  cannot  be  ques- 
tioned by  one  not  claiming  under  a  prior  grant:  Bul- 
lene  v.  Garrison,  1  W.  T.  587. 

Possession  under  quitclaim  deed  executed  before  the 
expiration  of  the  four  years'  residence  is  possession 
under  contract  prohibited  by  law,  and  gives  no  color 
of  title:  Id. 

Right  of  wife  is  merely  inchoate  until  the  requirements 
of  the  act,  in  residence  and  cultivation,  and  other  re- 
spects, have  been  complied  with:  Maynard  v.  Valentine, 
2  W.  T.  3;  Maynard  v.  Hill,  2  W.  T.  321. 

The  statute  contemplates  residence  and  cultivation  by 
wife  as  well  as  husband:  Id. 

Qusere,  whether  wife  might  not  reject  this  gift  of  the  gov- 
ernment, by  refusing  to  partake  of  the  husband's  domi- 
cile: Id. 

The  act,  and  not  the  patent,  is  the  instrument  which 
effects  the  transfer  of  title;  the  latter  only  evidences 


484  Public  Lands. 

Public  Lands  (continued). 

title,  and  relates  back  to  the  act:  Brazee  v.  Schofield, 
2  W.  T.  209. 

Claimant  under  patent  issued  to  widow  and  heirs  of  a  de- 
ceased donation  claimant  is  estoppec^from  denying  that 
such  widow  and  heirs  acquired  title  under  the  act:  Id. 

Residence  and  cultivation  of  man  after  divorce  is  that  of 
a  single  man:  Maynard  v.  Hill,  2  W.  T.  321. 

Wife  who  was  divorced  before  husband  had  completed  his 
residence  and  cultivation,  though  out  of  the  state  at  the 
time  the  act  took  effect,  acquires  no  rights  under  the 
act,  not  having  complied  with  the  requirements  of  resi- 
dence and  cultivation:  Id. 
5.   School  Lands. 

Register  of  state  lands  in  the  La  Grande  District  acts 
simply  as  agent  for  the  commissioners,  and  no  appeal 
lies  from  his  decision  to  Circuit  Court:  Anderson  v. 
Laughery,  3  Or.  277. 

Judicial  notice  is  taken  of  laws  by  which  school  super- 
intendent sells  to  private  person:  Dolph  v.  Barney,  5 
Or.  192. 

His  deed,  if  regular  on  its  face,  is  prima  facie  evidence  of 
his  power  to  convey:  Id. 

First  applicant,  after  the  six  months  allowed  for  settlers 
to  apply,  is  entitled  to  preference  in  sale:  Hurst  v. 
Ilawn,  5  Or.  275. 

Decision  of  commissioners  is  conclusive  on  the  state,  but 
does  not  prevent  a  party  from  showing  that  the  deed 
was  fraudulently  obtained:  Id. 

In  foreclosure  suits  by  the  commissioners,  the  district  at- 
torney is  entitled  to  prosecute,  and  to  secure  the  stat- 
utory fee,  though  other  counsel  may  be  employed  to 
assist:  Claim  of  Ison,  6  Or.  465. 

Otherwise,  where  the  state  is  not  a  party  of  record:  Haz- 
ard's Appeal,  9  Or.  366. 

Board  of  commissioners  is  not  an  inferior  tribunal,  but  a 
co-ordinate  branch  of  the  state  government:  Corpe  v. 
Brooks,  8  Or.  222. 

Its  decisions  are  not  subject  to  review  by  the  courts:  Id. 

But  a  court  of  equity  may  decree  patentee  to  hold  as 
trustee  for  one  having  better  equitable  title:  Ward  well 
V.  Paige,  9'Or.  517. 


Public  Lands.  485 

Publio  Lands  (continued). 

Purchaser  has  a  right  to  sever  timber  before  completing 
payments:  Schmidt  v.  Vogt,  8  Or.  344. 

The  title  to  funds  arising  from  the  sale  of  school  lands  is 
in  the  state:  State  v.  Chadwick  and  Brown,  10  Or.  423. 

State,  and  not  the  commissioners,  should  sue  for  an  ac- 
counting as  to  such  funds:  Id. 

Commissioners'  power  and  authority  over  such  funds;  evi- 
dence in  suit  for  an  accounting:  Id. 
6    Swamp  and  Tide  Lands. 

Act  of  September  28,  1850,  was  extended  to  Oregon  by  act 
of  March  12,  1860:  Gaston  v.  Stott,  5  Or.  48. 

Operated  as  a  grant  in  pressenti  to  the  state,  passing  fee- 
simple  title:  Id. 

Patent  provided  for  in  section  2  operates  as  further  assur- 
ance of  title:  Id. 

The  trust  raised  by  the  act  of  1850  is  a  personal  not  a 
property  trust,  and  does  not  run  with  the  land:  Id. 

State  could  select  and  dispose  of  swamp-lands  before 
patent  is  issued  by.  the  general  government  of  the 
United  States:  Id. 

Proviso  of  section  1,  act  of  1860,  does  not  operate  as  a 
limitation  upon  the  grant:  Id. 

State  lost  no  rights  by  not  making  selection  within  two 
years:  Id. 

The  provision  of  the  second  section  of  the  act  of  1860,  in 
relation  to  the  time  within  which  selections  were  to  be 
made  by  the  state,  is  directory,  and  the  state  loses  no 
right  by  not  strictly  complying  therewith:   Id. 

The  sovereignty  of  the  state  to  tide-lands  attached  on  its 
admission  to  the  Union:  Hinraan  v.  Warren,  6  Or.  408. 

The  United  States  has  no  power  to  dispose  of  tide-lands 
within  the  territory  before  the  admission  of  the  state, 
^and  its  deed  to  such  land  is  void:  Id. 

A  grant  of  the  United  States  can  extend  only  to  the 
meander  line  of  high  tide;  Id.;  Parker  v.  Taylor,  7  Or. 
436. 

State  has  the  exclusive  right  to  sell  the  tide-lands,  and  a 
shore-owner,  complying  with  the  act  in  purchasing,  may 
•erect  wharves  frou)  his  land  into  navigable  water,  pro- 
vided he  docs  not  impede  navigation:  Id. 

Accretions  added  to  lauds  of  a  riparian  owner  on  a  navi- 


486  Public  Lands. 

Public  Lands  (continued). 

gable  stream  cannot  be  entered  as  swamp-lands:  Minto 
V.  Delaney,  7  Or.  337. 

Such  owner  takes  to  the  stream,  and  not  merely  to  a 
meander  line  improperly  located  by  United  States  sur- 
vey: Id. 

Application  to  file  on  such  land  as  swamp-land  is  void, 
and  casts  no  cloud  on  owner's  title:  Id. 

The  state  owns  the  tide-lands,  and  may  sell  them:  Parker 
V.  Taylor,  7  Or.  435. 

Grantee  of  riparian  owner  has  exclusive  right  to  a  deed 
from  the  state,  if  he  applies  in  time:  Parker  v.  Rogers, 
8  Or.  183. 

Legislature  has  recognized  and  favored  the  rights  of  pur- 
chasers of  tide-lands  from  riparian  owners:  Id.;  De 
Force  v.  Welch,  10  Or.  507. 

Purchaser  of  tide-lands  under  act  of  1872,  held  to  be  no 
trustee  for  one  claiming  to  be  the  equitable  owner 
thereof:  Shively  v.  Parker,  9  Or.  500. 

Sovereign  acquires  title  to  land  gradually  submerged  by 
the  sea:  Wilson  v.  Shiveley,  11  Or.  215. 

Owners  of  abutting  property  entitled  to  purchase  tide- 
land:  Id. 

Patent  obtained  by  purchaser,  fraudulently  representing 
himself  the  owner  of  the  land  adjoining  tide-land,  will 
be  canceled  in  equity,  and  the  land  conveyed  to  the 
owner  of  the  abutting  property:  Id. 

Riparian  owner's  rights  are  not  derived  from  the  state, 
though  held  in  subordination  to  the  rights  of  the  pub- 
lic: Wilson  V.  Welch,  12  Or.  353. 

Quxre,  whether  shore-owner  purchasing  abutting  tide- 
lands  under  act  of  1872  gains  any  rights  that  he  had 
not  before:  Id. 

The  right  given  to  shore-owner  by  that  act  is  a  mere  op- 
tion to  purchase,  not  an  equitable  title:  Id. 

Tide-lands  are  lands  covered  by  ordinary  tides,  that  be- 
tween ordinary  high  and  low  water  mark,  and  must  be 
alternately  covered  and  left  dry  by  ordinary  tides:  An- 
drus  V.  Knott,  12  Or.  501. 

Lands  on  navigable  streams,  where  the  tide  ebbs  and 
flows,  may  be  tide-lands,  but  not  lands  covered  with 
water  three  fourths  of  the  year:  Id. 


Public  Land3.  487 

Public  Lands  (continued). 

Eflfect  of  repealing  clause  of  1878  (c.  52,  Hill's  A.  L.) 
was  to  take  away  unexercised  right  of  preference  to 
shore-owners  in  buying  tide-lands  from  the  state:  01- 
ney  v.  Moore,  13  Or.  238. 

Owners  who  had  already  availed  themselves  of  their  right 
to  purchase  were  not  affected  by  the  repeal:  Id. 

State  having  sold  to  a  fraudulent  purchaser,  its  power  is 
exhausted,  and  it  cannot  sell  to  another:  Id. 

But  suit  in  equity  by  the  abutting  owner  lies  against  such 
fraudulent  purchaser  to  have  his  title  inure  to  the  party 
entitled  to  it:  Id. 

This  right  of  suit  is  not  cut  off  by  the  repeal  of  the  act 
giving  the  right  to  abutting  owner  to  purchase,  but  only 
by  general  statute  of  limitations:  Id. 

Shores  of  navigable  streams  are  not  the  property  of  the 
United  States,  but  of  the  state:  Johnson  v.  Knott,  13 
Or.  308. 

The  point  to  which  water  usually  arises  in  an  ordinary 
season  is  the  true  meander  line  and  boundary  of  the 
United  States:  Id. 

Tide-land  act  of  1874  refers  only  to  such  land  as  was  sub- 
ject to  sale,  and  was    susceptible  of  cultivation   and' 
reclamation:  Id. 
7.   Homesteads. 

Homestead  commuted  by  pre-emption,  so  that  patent  is 
obtained  before  the  five-years'  residence,  is  not  liable 
for  debts  incurred  prior  to  patent:  Clark  v.  Bay  ley,  5 
Or.  343. 

Entry  of  homestead  by  one  in  trust  for  another  will  not 
be  recognized,  or  the  trust  enforced  in  equity:  Id. 

Lien  of  judgment  for  costs  in  a  criminal  case  does  not  at- 
tach to  homestead  before  patent:  State  v.  0  Neil,  7  Or. 
041. 

One  who  has  taken  the  preliminary  steps  to  secure  home- 
stead is  entitled  to  the  aid  of  equity  to  put  him  in  pos- 
session, when  prevented  from  entering  by  one  without 
title:  Kitcherside  v.  Myers,  10  Or.  21. 

Such  person  in  possession  has  s\ifficient  title  and  posses- 
■sion  to  maintain  action  for  trespass  by  cattle  upon  his 
claim:  French  v.  Cresswell,  13  Or.  418. 


488  Public  Lands. 

PvLjlic  Lands  (continued). 

Contracts  for  sale  of  soldiers'  additional  homestead  scrip 
are  void:  Mackintosh  v.  Renton,  2  W.  T.  121. 
8.    Patents  and  Certificates. 

Certificates  are  issued  by  register  and  receiver,  who  are 
the  successors  of  the  surveyor-general:  Keith  v.  Cheeny, 
1  Or.  285. 

Certificate  is  evidence  of  residence,  cultivation,  and  other 
facts  recited:  Id.;  Willamette  Co.  v.  Gordon,  6  Or. 
175. 

Patent  may  be  attacked  and  set  aside  for  fraud:  Starr  v. 
Stark,  2  Or.  118. 

A  patent  issued  to  city  of  Portland,  unimpeached  by  better 
title,  was  held  valid  for  the  purposes  of  this  case:  Id. 

To  set  aside  patent,  party  attacking  must  have  such  right 
in  law  as  to  be  able  to  claim  the  same  from  the  govern- 
ment: Lee  V.  Summers,  2  Or.  260. 

Patent  issued  to  wrong  person  not  void;  passes  title,  but 
patentee  is  trustee  for  the  benefit  of  the  rightful  claim- 
ant: White  V.  Allen,  3  Or.  103. 

Patent  is  proof  of  the  regularity  of  the  preliminary  pro- 
ceedings: Id. 

Patent  under  swamp-land  act  of  1850  operates  merely  as 
a  further  assurance  of  title:  Gaston  v.  Stott,  5  Or.  48. 

To  agricultural  land  does  not  pass  known  deposits  of 
previous  metals:  Gold  Hill  Q.  M.  Co.  v.  Ish,  5  Or.  104. 

Issuance  of  a  patent  under  the  Donation  Law  is  a  mere 
ministerial  act;  title  may  be  conveyed  before  patent  is 
obtained:  Dolph  v.  Barney,  5  Or.  191. 

Private  parties  cannot  use  the  name  of  the  state  to  try  out 
a  question  of  title  between  themselves  on  the  pretense 
of  annulling  a  patent:  Wilson  and  Wakeman  v.  Shively, 
10  Or.  267. 

Patent  to  tide-land,  obtained  by  one  fraudulently  repre- 
senting himself  the  owner  of  abutting  property,  will  be 
canceled  in  favor  of  the  owner:  Wilson  v.  Shiveley,  11 
Or.  215. 

Certificate  issued  by  the  state  to  applicant  for  swamp- 
land conveys  a  present  interest:  Wattier  v.  Miller,  11 
Or.  329. 

Courts  will  uphold  a  description  approved  by  the  execu- 
tive   department    of    the    United    States,   under    the 


Quieting  Title.  489 

Public  Lands  (continued). 

Donation  Act,  though  loose  and  soDnewhat  indefinite: 
Shockley  v.  Brown,  1  W.  T.  463. 
Ordinarily  the  issuance  of  patent  is  such  final  decision 
by  the  executive  department  respecting  the  title  that 
courts  will  have  jurisdiction,  especially  in  favor  of  the 
party  seeking  to  set  it  aside:  Id. 
In  action  of  ejectment,  where  plaintiff"  clams  under  certifi- 
cate of  purchase,  defendant  may  show  a  certain  state 
of  facts  by  reason  whereof  the  commissioner  caused 
such   certificate  to   be   canceled:    Hays   v.    Parker,   2 
W.  T.  198. 
The  act,   and    not   the   patent,  passes  title  to  donation 
claimant;  the  latter  merely  evidences  tiie  title  and  re- 
lates back  to  the  act:  Brazee  v.  Schofield,  2  W.  T.  209. 
Public  Nuisances.     See  Nuisances. 
Public  Policy.     Sec  Contracts. 
Public  Use.     See  Dedication;  Eminent  Domain. 
Puget  Sound. 

With  its  multitude  of  arms  and  inlets,  is  an  arm  of  the 

sea:  Smith  v.  United  States,  1  W.  T.  262. 
Admiralty  jurisdiction  of  the  United  States  extends  over 
Puget  Sound:  Id. 
Quantum  Meruit.     See  Assumpsit. 

Failure  to  complete  contract  to  furnish  work  and  mate- 
rials, for  any  reason  except  voluntary  abandonment, 
does  not  preclude  recovery  of  the  reasonable  value  for 
the  part  done:  Steeples  v.  Xewton,  7  Or.  110;  Tribou  v. 
Strowbridge,  7  Or.  156;  Todd  v.  Huntington,  13  Or.  9. 
Demand  not  necessary  to  be  proved  in  an  action  to  re- 
cover reasonable  value  of  attorney's  services:  Gibbs  v. 
Davis,  11  Or.  288. 
Questions  of  Law  and  Fact.     See  Jury  and  Jury  Trial. 
Quieting  Title.     See  Cloud  on  Title. 

What  suliicient  possession  to  give  right  to  impeach  patent 

of  United  States:  Starr  v.  Stark,  2  Or.  118. 
Possession  of  plaintiff"  must  be  lawful  to  allow  him  to 
maintain  suit  under  section  500  of  tlie  Code  (sec.  504, 
Hill's  A.  L.):  Tichenor  v.  Knapp,  6  Or.  205. 
Possession  of  one  holding  by  deed  alone,  sufficient  in  case 
of  wild  lands  under  that  section:  Thompson  v.  Wolf,  8 
Or.  454. 


490  Quieting  Title. 

Quieting  Title  (continued). 

In  a  suit  under  section  500  (sec.  504,  Hill's  A.  L.),  where 
the  plaintiff  attempts  to  show  that  the  adverse  claim 
amounts  to  a  cloud,  he  must  allege  the  facts  showing 
the  apparent  validity,  and  the  real  invalidity  of  the  in- 
strument clouding  his  title:  Teal  v.  Collins,  9  Or.  89. 

In  such  suit,  where  the  right  claimed  is  equitable,  and 
not  legal,  and  plaintiff  is  out  of  possession,  the  objection 
that  plaintiff  has  a  remedy  at  law  comes  too  late  after 
answer  to  the  merits:  Kitcherside  v.  Myers,  10  Or.  21. 

Plaintiff  must  be  in  actual  possession,  under  that  section 
to  maintain  suit:  Coolidge  and  McClaine  v.  Forward 
and  Heneky,  11  Or.  118. 

The  remedy  under  section  500  (sec.  504,  Hill's  A.  L.) 
does  not  affect  the  chancery  jurisdiction,  outside  of  the 
statute, to  remove  cloud:  Id. 

Equity  will  not  try  out  a  question  of  dry  legal  title  where 
objection  to  jurisdiction  is  properly  taken:  Id. 

Adverse  claim  under  section  500  (sec.  504,  Hill's  A.  L.) 
need  not  amount  to  a  cloud  on  title:  Murphy  v.  Sears 
and  Ilolman,  11  Or.  127. 
Quitclaim  Deeds.     See  Deeds. 
Quo  Warranto. 

Complaint  in  action  to  have  oflQcer  adjudged  disquali- 
fied for  having  offered  reward  to  voter  must  show  that 
the  promise  was  to  benefit  the  voter:  State -v.  Church, 
5  Or.  375. 

Circuit  Court  will  entertain  proceedings  under  section  354 
of  the  Code  (sec.  357,  Hill's  A.  L.)  to  try  the  right  to 
municipal  office,  notwithstanding  a  municipal  board 
has  been  given  by  charter  the  right  to  judge  of  the 
election  of  its  members:  State  v.  McKinnon,  8  Or.  493. 

Private  relator  is  not  a  party,  and  cannot  control  the  pro- 
ceeding: State  V.  Douglas  County  Road  Co.,  30  Or.  198. 

District  attorney  has  powers  of  attorney-general  at  com- 
mon law  in  the  proceeding:  Id. 

The  substitute  under  the  Code  for  quo  warranto  is  identi- 
cal, except  in  form,  with  the  common-law  proceeding: 
Id. 

Private  parties  cannot  use  the  name  of  the  state  to  try  out 
a  question  of  title  between  themselves:  Wilson  and 
Wakeman  v.  Shively,  10  Or.  267. 


Railway  Companies.  491 

Quo  Warranto  (continued). 

Policeman  ousted  by  action  of  mayor  and  common  coun- 
cil of  a  city  without  cause  may  maintain  quo  ivarranto 
proceedings  against  one  appointed  to  fill  his  place: 
Selby  V.  Portland,  14  Or.  243. 

The  title  of  the  office  must  be  determined  in  his  favor  by 
some  such  proceeding,  or  he  cannot  sue  for  the  salary 
subsequently  accruing:  Id. 

Information  in  the  name  of  the  territory  is  the  proper 

.    method  of  ousting  a  retired   army  officer  unlawfully 
holding  civil  office  under  the  laws  of  the  territory:  Hill 
V.  Territory,  2  W.  T.  147. 
Railway  Companies.     See  Corporations;  Dedication;  Emi- 
nent Domain;  Negligence. 

1.  As  Corporations. 

2.  Construction. 

3.  Duties  and  Liabilities. 

1.  As  Corporations. 

Are  quasi  public  corporations;  public  have  an  interest  in 
their  location:  Ilolladay  v.  Patterson,  5  Or.  177. 

Chattel  mortgage  made  by  president  whose  powers  are  con- 
fined to  the  ordinary  business  of  the  corporation  under 
corporate  seal  is  void,  and  no  lien:  Luse  v.  Isthmus 
Transit  R'y  Co.,  6  Or.  125. 

Organized  under  Oregon  statutes  have  no  powers  but  such 
as  are  conferred  by  the  statutes  or  necessarily  inci- 
dental: Lakin  v.  R.  Pt.  Co.,  13  Or.  436. 

In  absence  of  statutory  authority  to  lease  the  road,  the 
duties  and  liabilities  for  torts  by  lessee  are  not  removed 
from  the  owning  corporation:  Id. 

2.  Construction. 

Neither  railroad  nor  adjoining  owner  is  required  bylaw  to 
fence  the  line  between  them:  Or.  Central  R.  R.  Co.  v. 
^ait,  3  Or.  91. 

Damages  to  owner  of  land  taken:  Id. 

Agent  charged  with  selecting  route  cannot,  for  considera- 
tion moving  to  himself,  agree  on  a  particular  route: 
Holladay  v.  Davis,  5  Or.  40. 

Subscription  as  donation  in  consideration  of  locating  the 
route  at  certain  place  instead  of  adopting  a  sliorter  sur- 
veyed route,  void  as  against  public  policy:  Ilolladay  v. 
Patterson,  5  Or.  177. 


492  Railway  Companies. 

Railway  Companies  (continued). 

Legislative  grant  to  a  railroad  company  of  use  of  a  pre- 
viously dedicated  public  levee  in  a  city,  for  terminal 
depots  and  docks,  held  a  license:  P.  &  W.  V.  R.  R.  Co. 
V.  Portland,  14  Or.  188. 

Such  license,  saving  the  rights  of  the  public  by  express 
terms,  is  not  inconsistent  with  the  original  dedication 
for  levee:  Id. 

Where  land  was  once  condemned  and  paid  for,  and  rail- 
road was  built,  but  afterwards  the  company  learned 
that  another  owned  the  property,  in  a  second  action  to 
condemn,  the  owner  is  not  entitled  to  put  in  evidence 
the  value  of  the  railroad  improvements  to  enhance 
damages:  0.  R.  &  N.  Co.  v.  Hosier,  14  Or.  519. 

Railroad  incorporated  and    organized  under  special  act 
may  proceed  to  condemn  land  under  the  general  statute: 
Cascades  R.  R.  Co.  v.  Sohns,  1  W.  T.  557. 
3.    Duties  and  Liabilities. 

Not  bound  to  stop  train  on  seeing  a  man  walking  on  the 
track;  may  presume  he  will  get  out  of  the  way  on 
sounding  the  alarm:  Cogswell  v.  Or.  &  Cal.  R.  R.  Co., 
6  Or.  417. 

It  is  gross  negligence  for  deaf  person  to  walk  on  the  track: 
Id. 

In  action  for  value  of  horses  killed,  evidence  of  purchase 
price  is  not  admissible:  Holstine  v.  Or.  &  Cal.  R.  R. 
Co.,  8  Or.  1G3. 

Slight  negligence  will  not  prevent  recovery  if  negligence 
complained  of  was  gross:  Id. 

Question  of  negligence  in  brakeman  putting  his  head  out 
of  the  window  of  moving  car  should  be  left  to  the  jury: 
Walsh  v.  Or.  R'y  &  Nav.  Co.,  10  Or.  250. 

Company,  having  agreed  to  pay  certain  sunis  in  carriage 
of  freight  and  passengers,  selling  the  road  and  render- 
ing performance  impossible,  the  sums  are  at  once  due 
in  money:  Branson  v.  Or.  R'y  Co.,  10  Or.  278. 

Must  f  o  construct  and  maintain  ditches  as  not  to  overflow 
adjoining  lands:  Davidson  v.  Or.  &  Cal.  R.  R.  Co.,  11 
Or.  13G. 

This  duty  is  not  lessened  by  lapse  of  time,  or  the  fact 
that  other  persons  turn  water  into  the  ditch:  Id. 

Liability  for  ejecting  a  person  from  a  train,  evidence  and 
damages:  Sullivan  v,  Or.  R'y  &  Nav.  Co.,  12  Or.  392. 


Rape.  493 

Railway  Companies  (continued). 

Liability  as  common  or  private  carriers:  Iloneyman  v. 

Or.  etc.  R.  R.  Co.,  13  Or.  452. 
Complaint  alleging  liability  as  common  carriers,  no  recov- 
ery can  be  had  on  proof  as  private  carriers:  Id. 
Company  not  holding  out  as  carrier  of  dogs,  but  permit- 
ting its  servant  to  take  charge  of  dogs  in  transporting 
them,  is  liable  at  most  as  private  and  not  as  counuon 
carrier:  Id. 
Lia])le  for  torts  of  lessees,  where  not  authorized  by  statute 

to  lease:  Lakin  v.  R.  R.  Co.,  13  Or.  43G. 
Construction  company  employed  by  owners,  being  in  pos- 
session of  the  road  and  operating  it  for  traffic  purposes, 
owners  are  liable  for  negligence  of  such  company  occa- 
sioning death:  Id. 
In  an  action  by  one  injured  while  coupling  a  car  loaded 
with  projecting  rails,  held  the  facts  showed  want  of  care 
on  his  part,  and  no  gross  negligence  on  the  part  of  the 
company,  and    motion  for  nonsuit  should    have  been 
sustained:  Scott  v.  Or.  R'y  &  Nav.  Co.,  14  Or.  211. 
Employee  continuing  in  his  extra-hazardous  employment 
knowing  that  the  usual  manner  of  the  company  in  do- 
ing a  particular  business  to  be  more  hazardous  than 
some  other  mode,  assumes  the  risk:  Id. 
Trainmen,  knowing  that  at  a  particular  place  on  the  track 
persons  are  liable  to  be  walking,  are  charged  with   an 
extra  degree  of  watchfulness  at  such  place:  Cassida  v. 
Or.  R'y  &  Nav.  Co.,  14  Or.  551. 
Jury  have  a  right  to  consider  as  a  circumstance  the  fact 
that  persons  were    accustomed  for  years  prior  to  the 
time  of  the  accident  to  walk  upon  the  track  at  that 
place:  Id. 
Same  degree  of  prudence  is  not  expected  in  children  as  in 

Adults:  Id. 

Hence,  evidence  that  the  intestate,  a  child  of  seven  years, 
being  frightened  by  cattle,  sought  refuge  on  the  railroad 
trestle  to  make  her  escape,  is  admissible  to  rebut  charge 
of  contributory  negligence:  Id. 

Rape. 

Prosecutrix,  though  a  child,  if  called  as  a  witness  must  be 

sworn:  State  v.  Tom,  8  Or.  177. 
Declarations  made  at  the  time,  or  the  fact  that  prosccu- 


494  Rape. 

Rape  (continued). 

trix  made  complaint,  admissible,  but  not  the  particulars 
of  what  she  then  said:  Id. 
Reasonable  Doubt.     See  Criminal  Law;  Homicide. 
Receipts.     See  Evidence;  Settlement. 
Receivers. 

Not  appointed  where  danger  of  ultimate  loss  of  partner- 
ship property  is  not  shown:  Wellman  v.  Harker,  3  Or. 
253. 

In  absence  of  statute  regulating  fees  of,  court  appointing 
may  allow  reasonable  compensation:  Martin  v.  Martin, 
14  Or.  165. 

Order  allowing  fees  is  a  final  order,  from  which  appeal 
lies:  Id. 
Recorder.     See  Jurisdiction;  Justice  of  the  Peace. 
Recording.     See  Chattel  Mortgages;  Deeds;  Husband  and 

Wife;  Liens;  Mortgages;  Notice. 
Records.     See  Appeal  and  Error;  County  Courts;  Evidence; 
Judgments  and  Decrees;  Judgment  Roll;  Jurisdiction; 
Practice. 

Authentication  of  record  from  any  state  must  show  judge 
certifying  is  presiding  judge,  or  the  only  judge,  of  his 
court:  Pratt  v.  King,  1  Or.  49. 

But  when  the  record  is  silent,  and  it  does  not  appear  that 
there  are  other  judges,  it  is  presumed  there  is  but  one 
judge:  Keyes  v.  Mooney,  13  Or.  179. 

The  official  character  of  the  judge  must  appear  from  his 
certificate:  Pratt  v.  King,  1  Or.  49. 

Entry  by  judge  in  his  docket,  to  the  effect  that  a  certain 
demurrer  was  overruled,  is  no  part  of  the  record:  Willa- 
mette Falls  etc.  Co.  v.  Smith,  1  Or.  181. 

Court  may  amend  during  term  to  make  the  record  conform 
to  the  facts:  Howell  v.  State,  1  Or.  241. 

When  judgment  is  rendered,  the  record  should  show  un- 
equivocally what  was  adjudicated:  Dray  v.  Crich,  3 
Or.  298.  » 

How  far  the  record  is  conclusive  of  jurisdiction;  recitals; 
evidence  in  aid  of,  or  to  dispute:  Ileatherly  v.  Hadley 
and  Owen,  4  Or.  1 ;  Tustin  v.  Gaunt,  4  Or.  305. 

Under  the  Code,  record  includes  all  papers  and  proceed- 
ings contained  in  judgment  roll;  Tustin  v.  Gaunt,  4 
Or.  305. 


Records.  495 

Records  (continued). 

Erasures  in  a  record  used  to  contradict  certified  copy, 
erasures  must  be  explained:  Dolph  v.  Barney,  5  Or. 
192. 

Failure  of  officer  of  inferior  tribunal  to  record  proceedings 
remedied  by  proceedings  to  complete  the  record;  super- 
visory control  of  Circuit  Court:  Road  Co.  v.  Douglas 
County,  5  Or.  373. 

The  right  to  nunc  pro  tunc  order  to  correct  the  record: 
Road  Co.  V.  Douglas  County,  5  Or.  40G;  Tompkins  v. 
Clackamas  County,  11  Or.  364;  Carter,  Rice,  &  Co.  v. 
Koshland,  12  Or.  492;  Lee  v.  Imbrie,  13  Or.  510;  Hays 
V.  Miller,  1  W.  T.  143;  Hale  v.  Finch,  1  W.  T.  517. 

Index  is  no  part  of  the  records  of  deeds;  deed  recorded 
and  not  indexed  operates  as  notice:  Board  of  Com.  v. 
Babcock,  5  Or.  472. 

Record  of  contract  of  County  Court,  duly  attested,  how  far 
conclusive:  Road  Co.  v.  Douglas  County,  6  Or.  299. 

Attorney  cannot  change  legal  effect  of  a  notice  of  appeal 
on  file  by  adding  proof  of  service:  Briney  v.  Starr,  6 
Or.  207. 

Contract  by  County  Court,  though  not  in  the  form  of  an 
order,  is  entitled  to  record  in  the  journal:  Road  Co.  v. 
Douglas  Co.,  6  Or.  299. 

The  whole  record,  and  not  the  petition  alone,  will  be  ex- 
amined in  ascertaining  whether  a  Probate  Court  has 
jurisdiction  to  admit  a  will  to  probate:  Moore  v.  Wil- 
lamette T.  &  L.  Co.,  7  Or.  359. 

A  petition  found  with  the  record,  and  apparently  acted 
upon  by  the  court,  is  deemed  to  have  been  filed  unless 
the  contrary  appear,  though  not  marked  "filed":  Id. 

Cannot  be  impeached  by  affidavits  showing  recital  of  ap- 
pearance, and  answering   to   be  untrue:    Cauthorn   v. 

—King,  8  Or.  138. 

Discretionary  with  court  to  change  record  showing  ar- 
raignment of  prisoner  when  conflicting  affidavits  as  to 
its  correctness  are  filed:  State  v.  Lee  Ping  Bow,  10  Or. 
27. 

Certificate  of  officer,  to  a  copy  of  judgment  record  of 
another  state,  need  not  contain  statement  that  he  com- 
pared the  copies  with  the  original:  Bloomfield  v.  Hu- 
mason,  11  Or.  229. 


496  Records. 

Records  (continued). 

A  manifest  clerical  error  in  date  in  authentication  should 
be  disregarded:  Keyes  v.  Mooney,  13  Or.  179. 

Report  of  referee  is  no  part  of  judgment  roll,  and  cannot 
be  considered  on  appeal  in  an  action  at  law:  Osborn  v. 
Graves,  11  Or.  526. 
Recoupments.     See  Set-offs  and  Counterclaims. 

Recoupment  of  damages  for  breach  of  warranty  of  an 
engine,  in  an  action  for  the  price:  Drake  v.  Sears,  8 
Or.  209. 

Partial  failure  of  consideration  may  be  set  up  as  a  defense 
to  an  action  on  a  bill  of  exchange,  and  the  defendant 
recoup  his  damages,  though  unliquidated:  Davis  v. 
Wait,  12  Or.  425. 
Redemption.  See  Executions,  and  Proceedings  Supple- 
mental; Mortgages;  Taxation. 
Reference.     See  Arbitration  and  Award. 

Judgment  on  award  void  if  report  is  made  by  the  referees 
after  their  authority  expires:  Hanner,  Jennings,  &  Co.  v. 
Coffin,  1  Or.  99. 

Trials  before  referee  proceed  in  same  manner  as  to  order 
of  proof  as  in  trial  before  court:  Stimson  v.  Estes,  3  Or. 
521. 

Referee  has  same  authority  as  court  in  directing  trial,  and 
deciding  incidental  questions:  Id.;  Bohlman  v.  Coffin 
and  Carter,  4  Or.  313. 

A  copy  made  and  certified  to  by  him  will  be  sufficient, 
instead  of  the  original  offered  in  evidence:  Id. 

In  an  action  at  law  involving  the  examination  of  long  ac- 
counts, court  may  refer  without  the  consent  of  the  par- 
ties: Tribou  v.  Strowbridge,  7  Or.  156. 

Section  219  of  the  Code  (sec.  222,  Hill's  A.  L.),  giving  the 
court  such  power,  is  not  in  violation  of  the  right  to  jury 
trial:  Id. 

Court  may  order  a  reference  in  order  to  ascertain  the 
amounts  of  rents  and  profits  collected  by  a  mortgagee  in 
possession:  Renshaw  v.  Taylor,  7  Or.  315. 

Referee,  for  an  accounting  between  partners,  should  ascer- 
tain what  the  profits  were,  not  what  they  should  have 
been:  Boire  v.  McGinn,  8  Or.  466. 

Findings  by  referees  in  equity  cases  stand  as  a  verdict, 
and  will  not  be  reversed  unless  clearly  against  the 
"weight  of  evidence:  Fahie  v.  Lindsay,  8  Or.  474;  over- 
ruled, O'Leary  v.  Fargher,  11  Or.  225. 


Rehearing.  497 

Reference  (continued). 

Nor  reviewed  by  the  Supreme  Court,  where  objections 
were  not  made  below:  State  v.  Grover,  Chad  wick,  & 
Fleischner,  10  Or.  66. 

Findings  will  not  be  reviewed  in  action  at  law  unless 
there  was  no  evidence  to  sustain  them:  WiUiams  v. 
Gallick,  11  Or.  337. 

Failure  to  find  on  immaterial  issue  of  fraud  is  not  error: 
Id. 

Report  of  a  referee  is  no  part  of  the  judgment  roll,  and 
cannot  be  considered  on  appeal  in  an  action  at  law: 
Osborn  v.  Graves,  11  Or.  526. 

A  referee  to  take  testimony  is  appointed  only  to  take  the 
oral  proofs  in  the  case:  Baker  v.  Woodward,  12  Or.  3. 

Written  documents,  especially  when  proved  by  being  au- 
thenticated as  provided  by  statute,  may  be  put  in  evi- 
dence at  the  hearing:  Id. 
Eeformation  of  Instruments.     See  Mistake  and  Acci- 
dent. 

Testimony  must  be  clear  and  conclusive  to  warrant  re- 
lief: Newsom  v.  Greenwood,  4  Or.  119;  Lewis  v.  Lewis, 
4  Or.  177;  Stephens  v.  Murton,  6  Or.  193. 

What  complaint  must  show  in  suit  to  reform  deed  on  the 
ground  of  mistake:  Lewis  v.  Lewis,  5  Or.  169;  Ramsey 
V.  Loomis,  6  Or.  367. 

Court  will  make  a  valid  contract  operate,  but  cannot 
make  a  void  contract  good:  Evarts  v.  Steger,  6  Or.  55. 

Administrator's  bond  failing  to  express  penal  sum  can- 
not be  reformed :  Id. 

Where  complaint  alleges  mistake,  and  not  fraud,  reforma- 
tion will  not  be  granted  for  fraud:  Stephens  v.  ISIurton, 
6  Or.  193. 

But  where  the  complaint  is  ambiguous  in  this  respect, 
the  relief  will  be  granted  if  the  objection  was  not  taken 
at  the  proper  time,  but  was  waived  by  answering:  Bal- 
dock  V.  Johnson,  14  Or.  542. 

Complaint  must  show  what  the  true  terms  of  the  contract 
are,  and  the  mistake:  Stephens  v.  Murton,  6  Or.  193. 
Register  and  Receiver.     See  Public  Lands. 
Registering.     See   Chattel  Mortgages;   Deeds;    Elections; 

Husband  and  Wife;  Liens;  Mortgages;  Notice. 
Rehearing.     See  Appeal  and  Error. 
Or.  Dig.— 32 


498  Removal  of  Causes. 

Eemoval  of  Causes. 

Order  partially  removing  a  cause  to  the  United  States 

court  on  ground  of  citizenship  of  part  of  defendants  is 

not  reviewable  in  Supreme  Court:  Fields  v.  Lamb,  2 

Or.  340. 
Such  order  does  not  affect  a  substantial  right  or  prevent 

a  judgment  or  decree  within  section  525  of  the  Code 

(sec.  535,  Hill's  A.  L.):  Id. 
Act  of  Congress,  March  2,  1867,  does  not  repeal  act  of 

July  27,  1866,  so  as  to  deprive  Circuit  Court  of  right 

to  make  such  order:  Id. 
Rents  and  Profits.      See   Landlord   and   Tenant;    Mesne 

Profits. 
Repeal  of  Statutes.     See  Statutes. 
Replevin. 

Costs  where  plaintiflP  recovers  part  of  property  only  cannot 

be  divided:  McDonald  v.  Evans,  3  Or.  474. 
Action  under  the  Code  is  substantially  replevin,  and  is 

governed   by  same   principles  in   demand  or  refusal: 

Moscr  V.  Jenkins,  5  Or.  447. 
Affidavit  for  immediate  delivery  is  no  part  of  pleadings: 

Id. 
Defendant  may  plead  property  in  himself  or  another  in 

bar,  and  if  he  recovers  judgment,  is  entitled  to  a  return: 

Spores  v.  Boggs,  6  Or.  122. 
The  plaintiff  must  recover  on  the  strength  of  his  own 

title,  and  not  the  weakness  of  that  of  the  defendant:  Id. 
Oflficer  cannot  justify  under  levy  on  personalty  in  the 

hands  of  third  person:  Spaulding  v.  Kennedy,  6  Or.  208. 
If  wrongful  taking  is  proved,  plaintiff  is  entitled  no  nom- 
inal damages  at  least:  Id. 
Pledgee  of  personal  property  cannot  deliver  possession  on 

satisfaction  of  his  claim  to  any  one  but  his  pledgor,  and 

a  stranger  cannot  recover  possession  from  him:  Dean 

V.  Lawham,  7  Or.  422. 
Verdict  for  damages,  without  finding  ownership  or  value 

will  not  sustain  judgment:  Jones  v.  Snider,  8  Or.  127. 
General  verdict  is  not  presumed  to  include  special  issues, 

necessary  to  be  passed  on  where  the  statute  requires 

special  findings  thereon:  Id. 
What  is  sufficient  complaint  in  action  on  undertaking 

in  replevin:   Cooper  v.  McGrew,  8  Or.  327;  Boyer  v. 

Fowler,  1  W.  T.  101;  Meigs  v.  Keach,  1  W.  T.  305. 


Replevin.  499 

Replevin  (continued). 

Replevin  docs  not  lie  against  officer  for  goods  levied  upon, 
after  verdict  of  sheriff's  jury  thereon  against  the  claim- 
ant: Remdall  v.  Swackhamer,  8  Or.  502;  Capital  Lum- 
bering Co.  v.  Hall,  9  Or.  93;  Ilexter  v.  Schneider,  14 
Or.  184. 

If,  after  delivery  to  plaintiff,  he  fails  to  prosecute  his 
action,  defendant  is  entitled  to  dismissal  with  costs; 
but  must  prove  his  right  to  the  property  or  its  value, 
if  he  demands  judgment  for  return  thereof:  Capital 
Lumbering  Co.  v.  Hall,  10  Or.  202. 

To  entitle  defendant  to  a  return  or  the  value,  the  answer 
and  proof  must  show  his  right  atTirmatively:  Id. 

Action  may  be  maintained  for  the  recovery  of  property 
exempt,  and  duly  claimed  as  such,  notwithstanding 
it  has  been  ordered  sold  under  section  155  of  the  Code 
(sec.  157,  Hill's  A.  L.),  in  an  attachment  suit:  Berry 
V.  Charlton,  10  Or.  362. 

The  fact  that  defendant  took  possession  without  fraud  or 
intention  to  do  wrong  does  not  make  the  taking  lawful: 
Surles  V.  Sweeney,  11  Or.  21. 

Demand  is  not  necessary  where  the  taking  was  wrongful, 
although  the  property  has  since  been  transferred  to  a 
bona  fide  purchaser:  Id.;  Ilexter  v.  Schneider,  14  Or. 
184;  Moorhouse  v.  Donaca,  14  Or.  430. 

Description  of  goods  in  complaint  and  judgment  must  be 
reasonably  certain:  Foredicc  v.  Rinehart,  11  Or.  208; 
Prescott  V.  Pleilner,  13  Or.  200;  Guille  v.  Wong  Fook, 
13  Or.  577. 

"  Sixteen  and  two  fifteenths  barrels  of  flour,  the  property 
described  in  the  complaint,"  suflicient  identification  of 
the  property  in  the  judgment:  Id. 

Where  no  immediate  delivery  is  had  in  the  action,  and 
the  defendant  keeps  possession,  he  cannot  object  to  the 
sufficiency  of  the  description  in  the  complaint:  Id. 

Affidavit  is  the  foundation  of  jurisdiction  of  order  for 
immediate  delivery:  Carlon  v.  Dixon,  12  Or.  144. 

Though  the  directions  to  the  officer  are  indorsed  on  the 
aflidavit  by  the  plaintiff  instead  of  the  justice  of  the 
peace,  the  sureties  are  liable  on  the  bond:  Id. 

Failure  to  allege  the  place  from  which  the  property  was 
taken  is  cured  by  verdict:  Kirk  v.  Matlock,  12  Or. 
319;  Moorhouse  v.  Donaca,  14  Or.  430. 


500  Replevin. 

Replevin  (continued). 

Justice  has  jurisdiction  irrespective  of  where  the  cause 
of  action  arose  if  the  other  jurisdictional  facts  exist:  Id. 

Description  and  valuation  in  complaint  of  mare  and  her 
colt  together  is  sufficiently  certain:  Prescott  v.  Heilner, 
13  Or.  200. 

Verdict  in  favor  of  party  having  possession  need  not 
assess  value:  Id. 

In  such  case  a  finding  that  he  is  "entitled  to  the  return 
thereof"  would  be  out  of  place:  Id. 

Verdict  failing  to  find  as  to  damages  for  detention  is  not 
defective;  presumed  that  jury  found  no  damage:  Id. 

Defendant  must  plead  special  property  in  himself  as  a 
defense,  and  cannot  prove  it  under  the  general  issue: 
Guille  V.  Wong  Fook,  13  Or.  577. 

Semhle,  that  the  defendant  can  prove  absolute  ownership 
in  himself  or  another,  under  the  general  issue:  Id. 

Verdict  and  judgment  must  identify  the  property  with 
certainty:  Id. 

"  Forty-nine  of  the  hogs  described  in  the  complaint,"  the 
complaint  describing  sixty-eight  generally,  is  too  in- 
definite in  verdict  and  judgment:  Id. 

Claim  by  the  defendant  upon  demand  made  that  the 
property  is  his  is  inconsistent  with  and  a  waiver  of  a 
claim  of  a  lien  thereon:  Id. 

No  demand  necessary  before  suit  to  recover,  from  pur- 
chaser under  execution  sale,  goods  seized  on  attachment 
as  the  property  of  a  third  person,  but  which  belong  to 
plaintiff":  Ilexter  v.  Schneider,  14  Or.  184. 

Verdict  of  sheriff^'s  jury  on  the  question  of  ownership  will 
protect  the  officer,  but  does  not  conclude  the  claimant 
from  bringing  replevin  against  the  purchaser:  Id. 

Sureties  on  replevin  bond  are  liable  for  costs  and  for  in- 
terest by  way  of  damages  for  the  breach,  when  judg- 
ment goes  against  plaintiff":  Carlon  v.  Dixon,  14  Or. 
293. 

Such  liability  is  limited  to  the  penalty  expressed  in  the 
bond:  Id. 

The  action  is  local,  and  a  complaint  which  only  alleges 
wrongful  taking  in  the  county  where  the  action  is 
brought  is  bad  on  demurrer:  Moorhouse  v.  Donaca,  14 
Or.  430. 


Res  Judicata.  501 

Replevin  (continued). 

But  in  the  absence  of  demurrer,  such  complaint  will  sus- 
tain evidence  of  the  situs  of  the  property  at  the  time  the 
action  was  commenced:  Id. 

Where  the  answer  admits  a  joint  taking  and  detention  by 
the  defendants,  it  is  not  error  to  refuse  to  instruct  that 
no  case  has  been  established  against  one  of  them:  Id. 

Error  in  date  in  instruction  held  immaterial;  where  the 
plaintiff  owned  the  property  a  few  days  before  com- 
mencement of  action,  presumption  is  that  he  owned  it 
at  that  date:  Id. 

Replevin  bond  is  for  the  especial  purpose  of  indemnifying 
the  obligee  or  his  assignee,  against  the  damages  ad- 
judged in  the  trial  in  the  particular  suit  in  which  it  is 
given:  Boyer  v.  Fowler,  1  W.  T.  101. 

The  old  rule  of  trying  the  issue  of  damages  on  replevin 
bond  stated:  Id. 

The  suit  in  which  the  bond  was  given  having  been  dis- 
missed, there  was  no  judgment  in  fjivor  of  the  obligee, 
and  she  is  concluded  from  maintaining  action  on  the 
bond:  Id.;  contra,  Meigs  v.  Keach,  1  W.  T.  305. 

Plaintiff  to  recover  in  replevin  must  have  had  actual  pos- 
session or  the  right  of  reducing  the  property  to  pos- 
session, at  the  time  of  the  unlawful  taking:  Sires  v. 
Newton,  1  W.  T.  356. 

Venue  is  jurisdictional;  complaint  must  allege  the  prop- 
erty was  in  the  county  at  the  commencement  of  the 
action:  Stiles  v.  James,  2  W.  T.  194. 

But  where  the  sheriff's  return  on  file  in  the  cause  shows 
the  property  is  within  the  court's  jurisdiction,  the  omis- 
sion in  the  pleading  is  corrected:  Id. 
Representations.     See  Fraud  and  Deceit;  Insurance. 
Reputation.     See  Evidence. 
Res  Gestae.     See  Evidence. 

Residence.     See  Domicile;  Elections;  Public  Lands. 
Res   Judicata.     See  Executions,  and   Proceedings  Supple- 
mental; Stare  Decisis. 

Suit  on  a  bond  for  a  deed  is  not  a  bar  to  suit  for  specific 
performance,  the  parties  and  property  affected  being 
•the  same,  but  the  subject-matter  difi'erent:  Knott  v. 
Stephens,  5  Or.  235. 

On  issue  of  former  adjudication,  where  the  record  shows 


502  Res  Judicata. 

Res  Judicata  (continued). 

that  the  pending  cause  was  in  issue  in  the  former  suit, 
jurors  in  such  suit  cannot  testify  otherwise:  Underwood 
V.  French,  6  Or.  G6. 

A  matter  cannot  be  said  to  have  been  adjudicated  in  for- 
mer action  which  was  not  in  issue  therein:  Hill  v. 
Cooper,  6  Or.  181. 

Not  only  all  questions  actually  litigated,  but  all  within 
the  issue,  are  concluded:  Barrett  v.  Failing,  8  Or.  152; 
Neil  V.  Tolman,  12  Or.  289. 

Parol  evidence  is  not  admissible  to  show  that  certain  is- 
sues were  withdrawn,  and  not  litigated  in  former  suit: 
Id. 

When  County  Court  makes  an  order  in  probate,  it  is  con- 
clusive unless  appealed  from:  Winkle  v.  Winkle,  8  Or. 
193. 

Judgment  in  ejectment  is  conclusive  as  between  the  par- 
ties as  to  legal  title  and  right  of  possession:  Hill  v. 
Cooper,  8  Or.  254. 

Judgment  in  default  has  the  same  effect  (by  estoppel)  as 
judgment  after  verdict:  Neil  v.  Tolman,  12  Or.  289. 

Water  rights  settled  by  decree  for  want  of  an  answer  can- 
not again  be  litigated  between  the  parties:  Id. 

Where  the  record  shows  that  the  court  in  the  former  case 
did  not  consider  the  merits  of  the  case,  but  dismissed 
the  same  without  trial  or  evidence,  such  judgment  is 
merely  a  nonsuit,  and  plea  of  former  adjudication  can- 
not be  based  thereon:  Hughes  v.  Walker,  14  Or.  481. 

The  matter  adjudicated,  to  be  a  bar,  must  be  a  fact  in 
issue  by  the  pleadings,  as  distinguished  from  a  fact  in 
controversy:  Glenn  v.  Savage,  14  Or.  567. 

A  question  in  issue  by  the  pleadings,  though  withdrawn 
from  the  consideration  of  the  jury,  cannot  be  again  the 
subject  of  suit:  Id. 

A  losing  party  cannot  be  allowed  to  try  his  cause  over 
again  in  a  counter-suit,  for  the  reason  that  he  was  not 
prepared   to  meet  his  adversary  upon  the  trial  of  the 
first  suit:  Kellogg  v.  Haddocks,  2  W.  T.  407. 
Restraint  of  Trade.     See  Contracts. 
Resulting  Trusts.     See  Trusts  and  Trustees. 
Return.     See  Appeal  and  Elrror;  Habeas  Corpus;  Summons. 
Revenue.     See  Taxation. 


Review,  Writ  of.  503 

Review,  Bills  of.     See  Equity. 
Review^,  Writ  of. 

Certiorari  and  appeal  are  concurrent  remedies  from  Justice 
and  County  Courts:  Blanchard  v.  Bennett,  1  Or.  328; 
Schirott  V.  Phillippi,  3  Or.  484;  contra,  Evans  v.  Chris- 
tian, 4  Or.  375;  Sellers  v.  Corvallis,  5  Or.  273;  Ramsey 
V.  Pettengill,  14  Or.  207;  Summers  v.  Harrington,  14 
Or.  480. 

Reasonable  time  will  be  allowed  by  the  Circuit  Court  to 
bring  up  proceeding  by  certiorari:  Thompson  v.  Mult- 

•    noniah  Co.,  2  Or.  34. 

Lies  to  County  Court  to  bring  up  its  proceedings  in  lay- 
ing out  highway:  Id.;  C.  &  G.  Road  Co.  v.  Douglas 
County,  5  Or.  280. 

Lies  to  review  judicial,  and  not  ministerial,  acts:  Id.; 
Burnett  v.  Douglas  County,  4  Or.  388. 

Lies  to  review  decisions  of  assessor  and  clerk  as  a  board 
of  equalization:  Rhea  v.  Umatilla  County,  2  Or.  298; 
Popplcton  v.  Yamhill  County,  8  Or.  337. 

But  must  be  exercised  within  six  months  after  their 
refusal  to  reduce  the  complainants'  tax:  Id. 

Review  allowed  as  auxiliary  to  habeas  corpus;  practice: 
Fleming  v.  Bills,  3  Or.  286. 

Appeal  involves  trial  of  fact  and  law;  review  questions  of 
law  only:  Schirott  v.  Phillippi,  3  Or.  484. 

After  expiration  of  time  to  appeal,  right  to  review  sur- 
vives: Id.;  Evans  v.  Christian,  4  Or.  375;  Sellers  v. 
Corvallis,  5  Or.  273;  contra,  Ramsey  v.  Pettengill,  14 
Or.  207;    Summers  v.  Harrington,  14  Or.  480. 

And  overruled  so  far  as  it  applies  to  County  Court:  Bro- 
back  V.  Huff,  11  Or.  395. 

Return  to  writ  is  part  of  the  judgment  roll,  and  a  bill  of 
exceptions    containing    same   unnecessary:    Johns   v. 
3Iarion  Co.,  4  Or.  4G. 

Return  must  show  affirmatively  that  jurisdiction  was 
acquired:  Id. 

Jurisdictional  irregularities  cannot  be  disregarded  as  not 
affecting  a  substantial  right:  Id. 

Where  the  granting  of  the  writ  involves  matter  of  public 
•interest  it  is  discretionary:  Burnett  v.  Douglas  County, 
4  Or.  388. 

Order  of  County  Court  to  proper  officers  to  receive  and 


504  Review,  Writ  of. 

Review,  Writ  of  (continued). 

cancel  certain  warrants  is  not  judicial  or  subject  to 
review:  Id. 

Review  brings  up  the  record,  not  the  evidence:  C.  &  G, 
Road  Co.  V.  Douglas  County,  5  Or.  280;  Road  Co.  v. 
Douglas  County,  6  Or.  299;  Poppleton  v.  Yamhill 
County,  8  Or.  337. 

Lies  only  when  the  party  seeking  the  writ  has  been  con- 
cluded by  the  determination:  Id. 

Proper  remedy  to  require  County  Court  to  complete  its 
record,  and  not  injunction:  Road  Co.  v.  Douglas  County, 
5  Or.  373. 

When  and  in  what  manner  the  facts  may  be  brought  up 
to  the  court  for  review;  what  is  the  record?  Road  Co. 
V.  Douglas  County,  5  Or.  406;  Harper  v.  Harding,  3 
Or.  861. 

Affidavits  in  support  of  application  for  nunc  pro  tunc 
order,  part  of  record:  Id. 

Only  remedy  from  justice's  judgment  after  striking  out 
answer,  defendant  refusing  to  further  plead:  Long  v. 
Sharp,  5  Or.  438. 

Does  not  lie  to  County  Court  for  exercise  of  discretion  in 
fixing  and  allowing  reasonable  fees  for  services,  where 
not  fixed  by  law:  Cook  v.  Multnomah  County,  8  Or. 
170. 

But  where,  in  such  case,  it  exercises  its  jurisdiction  erro- 
neously, or  exceeds  its  jurisdiction,  review  lies:  Pruden 
V.  Grant  Co.,  12  Or.  308. 

Does  not  lie  to  board  of  school  land  commissions  to  review 
its  decisions:  Corpe  v.  Brooks,  8  Or.  222. 

Findings  of  fact  of  inferior  tribunal  will  not  be  disturbed 
unless  manifestly  wrong:  Poj^pleton  v.  Yamhill  County, 
8  Or.  337. 

Docket  of  justice  not  showing  that  defendant  was  given 
an  hour  to  appear,  judgment  in  default  reversed  on  re- 
view: Gaunt  V.  Perkins,  8  Or.  354. 

Lies  to  County  Court  to  correct  errors  of  in  county  busi- 
ness; appeal  is  not  proper  remedy:  Mountain  v.  Mult- 
nomah County,  8  Or.  470. 

So  review  lies  to  the  County  Court  to  review  its  proceed- 
ings where  it  refuses  to  perform  a  duty  prescribed  by 
law  in  auditing,  allowing,  and  paying  the  expenses  of 
a  milita  company  for  its  armory:  Id. 


Rewards.  505 

Review,  "Writ  of  (continued). 

Proper  remedy  from  judgment  of  recorder  of  La  Fayette 
rendered  in  city  case:  Town  of  La  Fayette  v.  Clark,  9 
Or.  225. 

Common  council  of  Portland  being  by  charter  the  final 
judge  of  the  election  of  its  members,  on  review  errors 
of  fact  or  law  in  counting  the  votes  cannot  be  retried: 
Simon  v.  Portland  Common  Council,  9  Or.  437. 

Does  not  lie  to  County  Court  in  the  matter  of  auditing 
and  allowing  claims,  except  where  such  duties  are  in- 
vested with  judicial  character:  Crossen  v.  Wasco  Co., 
10  Or.  111. 

Proper  judgment  in  Circuit  Court  on  review  of  justice's 
judgment  is  to  direct  the  justice  to  proceed  in  the 
matter  reviewed  according  to  the  decision  of  the  Cir- 
cuit Court:  Crowley  v.  State,  11  Or.  512. 

Appeal  and  review  are  concurrent  remedies  to  review  a 
void  judgment  in  default:  Prickett  v.  Cleek,  13  Or.  415. 

Where  a  policeman  is  ousted  without  cause  by  mayor  and 
council,  and  another  is  put  in  his  place,  quaere  whether 
review  will  not  lie:  Selb}'-  v.  Portland,  14  Or.  243. 

County  is  necessary  party  defendant  in  proceedings  to  re- 
view action  of  county  commissioners  refusing  license  to 
sell  liquors:  Wood  v.  Riddle,  14  Or.  254. 

Review  is  not  a  remedy  adapted  to  the  litigation  of  dis- 
puted claims  against  a  county:  Vincent  v.  Umatilla 
Co.,  14  Or.  375. 

Upon  review  in  such  case  all  the  facts  and  requirements 
of  law  to  the  creation  of  a  valid  claim  against  the 
county  should  appear  affirmatively:  Id. 

And  this  rule  is  more  strictly  applied  where  the  proceed- 
ings in  the  County  Court  were  ex  parte:  Id. 

So,  the  allowance  of  claims  for  militia  companies  being 

''discretionary  with  the  County  Court,  it  must  appear 
that  due  application  and  compliance  with  the  law  has 
been  made:  Id. 
Revival  of  Judgments.     See  Judgments  and  Decrees. 
Rewards. 

Finder  of  lost  property  not  entitled  to  reward  unless  there 
be  promise  of  reward  by  owner:  Watts  v.  Ward,  1  Or.  86. 

Complaint  in  action  to  try  title  to  ofhce,  and  to  have 
oliicer  adjudged  disqualified  for  having  offered  reward 


506  Rewards. 

Rewards  (continued). 

to  voters,  must  show  the  promise  to  be  to  benefit  voter: 
State  V.  Church,  5  Or.  375. 

Promise  by  candidate  to  pay  into  county  treasury  part  of 
his  salary  is  not  such  offer  as  to  disqualify  unless 
shown  to  benefit  those  to  whom  offered:  Id. 

Knowledge  on  the  part  of  the  defendants  of  the  publica- 
tion of  an  off'er  of  reward  over  their  signature,  but  with- 
out their  authority,  is  not  sufficient  by  mere  silence, 
without  fraud,  to  estop  them  from  denying  that  they 
ofiered  the  reward:  Hugil  v.  Kinney,  9  Or.  250. 

Printed  advertisement  of  off'er  of  reward  by  carrier  is  ad- 
missible evidence  as  an  admission  of  liability  for  loss 
of  money  package:  Bennett  v.  N.  P.  Ex.  Co.,  12  Or.  49. 
Right  of  Way.     See  Easements;  Eminent  Domain. 
Riot. 

What  constitutes  an  unlawful  assemblage  under  the 
statute:  Newby  v.  Territory,  1  Or.  164. 

Form   and   contents  of  indictment  and  verdict:  State  v. 
Tom  Louey  and  Loo  Wan,  11  Or.  326. 
Riparian  Owners.     See  Ferries;  Water  and  Watercourses. 
Roads.     See  Highways. 
Road  Supervisors. 

Are  agents  of  county;  liability  of  county  for  their  neglect 
to  repair  bridges:  McCalla  v.  Multnomah  Co.,  3  Or.  424; 
Heilner  v.  Union  Co.,  7  Or.  83. 

Are  sole  judges  of  the  necessity  for  taking  road  materials 
from  lands  near  the  road  for  purpose  of  repairing  the 
road:  Kendall  v.  Post,  8  Or.  141. 

Equity  will  not  interfere  so  long  as  they  do  not  oppress, 
in  the  discharge  of  such  duties:  Id. 

The  owner  must  apply  to  the  County  Court  for  recompense 
for  the  injury  he  suffers  by  reason  of  road  materials 
having  been  taken  from  his  land:  Id. 

Cannot  maintain  suit  to  enjoin  a  person  illegally  collect- 
ing and  appropriating  road  taxes:    Pettyjohn  v.  Par- 
montcr,  10  Or.  341. 
Robbery. 

In  the  contemplation  of  the  law,  robbery  is  not  completed 
until  the  taking  and  carrying  away  are  ended,  where 
the  removal  is  continuous  and  uninterrupted:  State  v. 
Brown,  7  Or.  186. 


Rules  of  Court.  507 

Rules  of  Court. 

Rules  of  the  Oregon  Supreme  Court:  1  Or.  11;  1  Or.  331; 
2  Or.  15;  3  Or.  14;  4  Or.  viii.;  G  Or.  vii.;  9  Or.  35;   12 
Or.  533. 
Rules  of  United  States  District  Court  for  district  of  Oregon: 

1  Or.  373. 
After  appeal  in  criminal  case,  statement  of  errors  relied  on 

must  be  given  on  demand:  State  v.  Ellis,  3  Or.  497. 
Every  court  has  power  to  establish  reasonable  rules  for 
conduct  of  business:  Carney  v.  Barrett,  4  Or.  171;  Coyote 
G.  &  S.  M.  Co.  V.  Ruble,  9  Or.  121. 
Rule  requiring  instructions  requested  to  be  presented  in 
writing   before   last   address  of  counsel  to  jury,  held 
reasonable:  Id. 
Rules  promulgated,  not  repugnant  to  law,  are  equally  bind- 
ing on  court  and  litigants:  Coyote  G.  &  S.  M.  Co.  v. 
Ruble,  9  Or.  121. 
Court  has  no  discretion  to  set  aside  a  rule  in  a  particular 

case,  unless  authorized  by  the  rule  itself:  Id. 
Petition  for  rehearing  filed  after  time  fixed  by  rule  cannot 

be  heard:  Id. 
Conceding  that  Supreme  Court  of  Washington  Territory 
has  power  to  make  rules  governing  it  on  appeals  in  ad- 
miralty cases,  it  has  not  done  so,  nor  has  the  Supreme 
Court  of  the  United  States   made    such  rules  for  it: 
Nickels  v.  Griffin,  1  W.  T.  374. 
Manner  of  taking  appeal  was,  under  Code  of  1871,  pre- 
scribed by  the  rules  of  the  territorial  Supreme  Court: 
Garrison  v.  Cheeney,  1  W.  T.  489. 
These  rules  and  the  practice  thereunder  was  changed  by 

the  Code  of  1873:  Id. 
Under  Code  of  1871,  actions  at  law  were  regulated  by  the 
Code,  while  all  pleadings  and  proceedings  in  chancery 
-cases  were  to  be  as  prescribed  by  the  laws  of  the  United 
States   and  the  rules  of  the  United    States  Supreme 
Court:  Id. 
Publication  of  summons  in  equity  cases  as  governed  by 
the  rules  of  the  Supreme  Court  of  the  United  States:  Id. 
Rules  of  court  are  part  of  the  record  of  every  cause  tried 
'therein,  but  cannot   be   considered  on  appeal,    unless 
properly  certified  as  a  part  of  the  record  in  the  cause: 
W.  W.  P.  &  P.  Co.  V.  Budd,  2  W.  T.  336. 


508  Rules  of  Court. 

Rules  of  Court  (continued). 

Whether  District  Court  can,  by  its  rules,  make  the  ser- 
vice on  the  opposite  party,  of  a  demurrer  filed  with  the 
clerk,  essential  to  an  appearance,  in  view  of  section  72 
of  the  Code  of  1881:  Id. 
Appeal  dismissed  because  brief  of  appellant  was  not  filed 
within  the  time  prescribed  by  rule  of  the  Supreme 
Court:  Lewis  v.  Host,  2  W.  T.  402. 

Salary.  See  Bribery;  Compensation;  County  Judge;  Fees; 
Offices  and  Officers;  Police  Judge;  Secretary  of  State. 

Sales.  See  Administrators  and  Executors;  Complaints;  Con- 
tracts; Damages;  Executions,  and  Proceedings  Supple- 
mental; Fraud  and  Deceit;  Liens;  Specific  Perform- 
ance; Statute  of  Frauds;  Tender;  Trusts  and  Trustees. 

1.  The  Contract  of  Sale. 

2.  Delivery. 

3.  Validity. 

4.  Warranty. 

5.  Rights  and  Remedies. 
1.   The  Contract  of  Sale. 

A  contract  of  sale  where  title  is  not  to  pass  until  selection 
is  made  is  not  a  bill  of  sale:  Lownsdale  v.  Ilunsaker,  2 
Or.  101. 

Merc  agreement  to  sell  land  does  not  constitute  license  to 
purchaser  to  enter:  Lee  v.  Summers,  2  Or.  260. 

Delivery  under  written  agreement  to  pay  rent  in  install- 
ments, until  the  full  price  is  so  paid,  and  title  in  the 
mean  time  to  remain  in  vendor,  is  not  a  sale:  Singer 
Mfg.  Co.  V.  Graham,  8  Or.  17;  Rosendorf  v.  Hirsch- 
berg,  8  Or.  240. 

Bona  fide  purchaser  from  the  bailee  does  not  acquire  title 
as  against  owner:  Id. 

Vendee  takes,  in  such  case,  merely  a  right  by  implication 
to  use  until  he  makes  default:  Rosendorf  v.  Ilirschberg, 
8  Or.  240. 

An  implied  condition  that  the  property  is  in  existence  is 
a  part  of  the  contract  of  sale:  Powell  v.  D.  S.  &  G.  P. 
R.  R.  Co.,  12  Or.  488. 

If  the  property  has  ceased  to  exist  when  the  time  for  per- 
formance arrives,  each  party  is  discharged  from  the 
contract:  Id. 

Contract  to  pass  title  to  a  chattel  after  payment  of  price 


Sales.  •  509 

Sales  (continued). 

is  regarded  as  if  it  read  upon  such  payment:  Ilawley, 
Dodd,  &  Co.  V.  Kenoyer,  1  W.  T.  GOO. 

Such  contract  contains  two  mutual  interdependent  prom- 
ises, the  one  being  in  consideration  of  the  other,  and 
conditional  upon  its  performance:  Id. 
2.   Deliveuy. 

Sale  unaccompanied  by  delivery  is  void  at  common  law 
against  attaching  creditors:  Monroe  v.  Ilusscy  and  Bur- 
bank,  1  Or.  188. 

Sale  without  delivery,  when  a  future  selection  and  deliv- 
ery is  contemplated,  gives  vendee  no  right  to  take  pos- 
session without  consent  of  vendor;  his  action  is  for 
breach  of  contract:  Lownsdale  v.  Ilunsaker,  2  Or.  101. 

Delivery  of  sheep  under  contract;  question  for  the  jury, 
where  they  were  not  counted  out:  Southwell  v.  Breez- 
ley,  5  Or.  143;  S.  C,  5  Or.  458. 

The  question  of  fraud  on  the  sale  of  chattels  where  vendor 
retains  possession  should  be  left  to  the  jury;  the  pre- 
sumption is  disputable:  McCully  v.  Swackhamer,  6 
Or.  438. 

Vendor  need  not  remove  heavy  machinery  from  his  shop 
to  depot,  to  deliver  it,  when  vendee  is  not  there  with 
cars  as  agreed,  to  receive  it;  Smith  Bros.  v.  Wheeler,  7 
Or.  49. 

Actual  delivery  is  not  necessary  in  such  case  before  action 
for  the  price:  Id. 

Sale  of  standing  timber,  to  be  delivered  in  logs  at  vendee's 
mill,  the  possession  and  right  of  property  remain  in  the 
vendor  until  delivery:  Dean  v.  Lawham,  7  Or.  422. 

The  pledgee  of  the  vendor,  holding  possession  to  secure  the 
price  of  his  labor  on  the  logs,  has  a  right  to  the  posses- 
sion as  against  the  vendee:  Id. 

Huch  pledgee  is  bound  to  deliver  the  logs  to  the  vendor, 
from  whom  he  received  them,  on  the  satisfaction  of  his 
claim:  Id. 

Sale  of  land  does  not  pass  title  to  cord  wood  cut  and  piled 
thereon  by  vendor:  Schmidt  v.  Vogt,  8  Or.  344. 

Jf  goods  are  sold  by  number,  weight,  or  measure,  the  sale 
incomplete,  and  risk  is  with  the  vendor  until  separa- 
tion: Ilubler  V.  Gaston  and  Furry,  9  Or.  GO. 

Quantity  of  oats  sold,  to  be  sacked  and  delivered,  but 


510  •  Sales. 

Sales  (continued). 

which  were  not  separated  or  identified  at  the  time  of 
sale,  remain  the  property  of  and  at  the  risk  of  the  ven- 
dor: Id. 

3.  Validity. 

Validity  of  sale  a  question  for  jury,  in  action  against 
sheriff  for  not  levying  on  personalty  in  the  possession 
of  debtor,  claimed  by  him  to  have  been  sold  to  a  third 
party:  I\Ioore  v.  Floyd,  4  Or.  101. 

Sale  of  personal  property  of  greater  value  than  fifty  dol- 
lars is  void  unless  the  written  agreement  or  memoran- 
dum express  the  consideration:  Corbitt  v.  Salem  Gas- 
light Co.,  6  Or.  405. 

Fraud  invalidating  a  sale  of  chattels  left  in  possession  of 
vendor  is  a  question  for  the  jury:  McCully  v.  Swack- 
hamer,  6  Or.  438. 

The  retention  of  possession  of  personalty  by  the  vendor 
after  sale  creates  a  disputable  presumption  of  fraud:  Id. 

Where  there  is  no  fiduciary  relation,  it  is  not  usually  in- 
cumbent on  the  vendee,  on  purchasing,  to  disclose  facts 
within  his  knowledge  of  advantage  to  vendor:  Caples 
v.  Steel,  7  Or.  491;  Savage  v.  Savage,  12  Or.  459. 

Vendee  need  not  disclose  his  knowledge  of  a  mine  on  land 
which  he  purchases,  but  his  willful  misstatement  will 
render  the  sale  voidable:  Id. 

Purchase  of  land  by  attorney  in  fact  from  his  distant 
principal,  without  disclosing  a  better  off"er  previously 
received,  will  be  set  aside  on  repayment  of  purchase- 
money:  Savage  v.  Savage,  12  Or.  459. 

Sale  by  executor,  without  authority,  may  be  ratified  and 
rendered  valid  by  the  Probate  Court,  if  deemed  of  ad- 
vantage to  the  estate:  Brewster  v.  Baxter,  2  W.  T.  135. 

So  any  one  interested  in  the  estate  may  ratify  the  same 
to  the  extent  of  his  interest:  Id. 

Demand  by  such  interested  person,  with  knowledge  of  the 
facts,  made  upon  the  vendee  for  an  accounting  of  the 
proceeds  of  such  sale,  is  a  ratification:  Id. 

4.  Wauranty. 

Price  paid  is  the  measure  of  damages  for  breach  of  war- 
ranty of  title:  Arthur  v.  Moss,  1  Or.  193. 

Measure  of  damages  for  breach  of  warranty  on  sale  of 
engine:  Drake  v.  Scars,  8  Or.  209. 


Sales.  511 

Sales  (continued). 

Where  answer  denied  express  warranty  that  hops  sold 
were  grown  by  defendants,  and  averred  their  soundness 
at  time  of  delivery,  plaintiff  must  prove  sale  by  sample 
and  inferiority  of  the  bulk  to  the  sample,  or  fraud,  or 
express  warranty  of  quality:  Schraieg  v.  Wold,  1  W.  T. 
472. 

Sale  of  chattels  in  possession  of  vendor  is  a  warranty  of 
title,  which  extends  to  encumbrances:  Baker  and  Ham- 
ilton V.  McAllister,  2  W.  T.  48. 
5.   Rights  and  Remedies. 

Complaint  must  allege  promise  to  pay  for  goods  sold,  and 
show  that  payment  is  due:  Bowen  v.  Emmerson,  3  Or 
452. 

Equity  will  entertain  jurisdiction  in  case  of  fraudulent 
sale,  where  deceit  is  alleged,  although  an  action  for  de- 
ceit would  lie:  Smith  v.  Griswold,  6  Or.  440. 

Where  goods  are  sold  on  credit,  the  vendee  to  furnish 
secured  notes  in  payment,  and  he  fails  to  do  so,  action 
lies  to  recover  the  price  before  the  term  of  credit  ex- 
pires: Wheeler  v.  Harrah,  14  Or.  325. 

Where  contract  within  the  statute  of  frauds  contains  two 
mutual  promises,  and  is  signed  by  the  party  suing  on 
it  only,  the  other  party  may  successfully  interpose  the 
defense  of  the  statute:  Hawley,  Dodd,  &  Co.  v  Kcn- 
oyer,  1  W.  T.  609. 

Vendee,  on  discovering  breach  of  warranty  of  title  of  the 
chattels,  may  rescind  by  tendering  back  the  property, 
and  set  up  the  breach  of  the  contract  against  an  action 
for  the  price:  Baker  and  Hamilton  v.  McAllister,  2  W  T 
48. 

On  breach  by  vendee  of  executory  contract  for  sale  of  real 
estate,  vendor  may  treat  the  contract  as  equitable  mort- 
^gage  and  foreclose,  or  may  tender  deed  and  sue  for  pur- 
chase price:  Wood  v.  Mastick,  2  W.  T.  G4. 

Vendee  of  land  in  possession  must  tender  reconveyance, 
or  offer  to  surrender  possession,  or  he  cannot  defend  on 
the  ground  that  vendor  had  agreed  to  execute  further 
deed,  and  had  failed  in  the  condition:  Kenworthy  v 
Merritt,  2  W.  T.  155. 

Vendor  fraudulently  selling  lots  of  little  value,  at  same 
time  showing  vendee  lots  of  great  value,  and  by  fraud 


512  Sales. 

Sales  (continued). 

pursuading  him  to  believe  them  the  lots  sold,  is  liable 
in  an  action  of  deceit  for  the  difference  in  value:  Phin- 
ney  v.  Hubbard,  2  W.  T.  369. 

Salmon.     See  Game  Laws. 

Satisfaction.     See  Executions,  and  Proceedings  Supplemen- 
tal; Judgments  and  Decrees;  Mortgages. 

Schools.     See  Public  Lands;  University. 

1.  School  Districts. 

2.  School  Tax  and  School  Fund. 

3.  Officers. 

1.  School  Districts. 

Are  public  corporations,  and  consent  of  governor  neces- 
sary before  suit  to  annul  their  existence:  State  v.  Hulin, 
2  Or.  306. 

Claims  should  be  presented  to  the  directors  before  suing 
the  district  thereon:  Stackpole  v.  School  District  No. 
5,  9  Or.  508. 

In  the  absence  of  express  statutory  provision,  mechanic's 
lien  cannot  attach  to  a  school  building:  Lumbering  etc. 
Co.  V.  School  District,  13  Or.  283. 

2.  School  Tax  and  School  Fund. 

Clerk  may  pay  outstanding  warrants  in  the  order  of  their 
presentation:  Howard  v.  Bamford,  3  Or.  565. 

Not  necessary  to  apply  the  money  of  each  year  exclu- 
sively to  pay  for  school  during  such  year:  Id. 

Remedy  when  clerk  has  funds  and  refuses  to  pay  a  claim 
is  by  mandamus:  Id. 

Compensation  of  member  of  the  board  of  commissioners 
out  of  school  fund  under  the  act  of  1864:  Fleischner  v. 
Chadwick,  5  Or.  152. 

Act  of  1865,  providing  for  loaning  school  funds,  is  consti- 
tutional: Kubli  V.  Martin,  5  Or.  436. 

Indebtedness  may  be  deducted  from  assessments  for 
school  purposes:  Stephens  v.  School  District  No.  21,  6 
Or.  353. 

School  clerk  in  making  assessments  must  follow  the  gen- 
eral law  governing  assessors:  Id. 

Act  of  1876,  as  to  collecting  school  taxes,  repeals  subdi- 
vision 2,  section  37,  chapter  4,  Miscellaneous  Laws: 
Stingle  v.  Nevel,  9  Or.  62. 


Secretary  of  State.  513 

Schools  (continued). 

The  act  of  1878,  upon  the  same  subject,  does  not  repeal 
said  act  of  187G:  Id. 
3.   Officers. 

Court  takes  judicial  notice  of  a  superintendent's  power  to 
convey  school  land  to  private  person:  Dolph  v.  Barney, 
5  Or.  192. 

His  deed,  if  regular  on  its  face,  is  prima  facie  evidence  of 
his  power  to  convey:  Id. 
Scire  Facias.     See  Judgments  and  Decrees. 
Seals. 

Of  private  corporation  need  be  in  no  particular  form: 
Eagle  Woolen  Mills  Co.  v.  Monteith,  2  Or.  277. 

Iowa  statute  concerning  seals  of  private  person  to  sealed 
instruments  was  adopted  in  1844  in  Oregon:  Wilson  v. 
McEwan,  7  Or.  87. 

Any  device  or  scrawl  affixed  by  way  of  a  seal  is  sufficient 
under  that  statute:  Id. 

Of  corporation,  with  the  corporate  name  thereon,  affixed 
by  officers,  with  their  names  on  a  note,  imports  an  in- 
tention to  bind  the  company:  Gutlirie  v.  Imbrie,  12  Or. 
182. 

Private  seal  of  probate  judge  adopted  as  the  seal  of  the 
court  is  entitled  to  full  credit  as  such:  Ward  v.  Moorey, 
1  W.  T.  104. 
Seat  of  Government. 

Legislature,  in  enacting  that  seat  of  government  shall  be 
and  remain  at  Vancouver,  exceeded  its  powers  under 
the  Organic  Act  to  "change"  the  same:  Seat  of  Gov- 
ernment Case,  1  W.  T.  115. 

Said  act  is  made  contingent  by  act  of  same  session,  sub- 
mitting to  the  people  a  vote  as  to  their  choice  for  place 
for  the  seat  of  government:  Id. 
Secretly  of  State. 

Authority  to  draw  warrant  depends  on  appropriation  by 
legislature:   Brown  v.  Fleischner,  4  Or.  132. 

Decisions  of,  in  allowing  claims  against  the  state,  are  not 
judicial  in  their  nature  or  effect:  State  v.  Brown,  10  Or. 
215. 

Such  decisions  are  not  conclusive  on  the  parties  in  collat- 
eral proceedings:  Id. 

Allowance  of  claim  by,  does  not  constitute  account  stated, 

Oe.  Dio.— 33 


514  Secretary  of  State. 

Secretary  of  State  (continued). 

and  state  is  not  bound  by  the  determination  in  action 
to  recover  money  unlawfully  allowed  on  such  account: 
Id. 
Acting  as  governor,  during  interim,  is  entitled  to  the  sal- 
ary as  such,  though  drawing  salary  as  secretary:  diad- 
wick  V.  Earhart,  11  Or.  389. 
Continues  to  perform  duties  of  governor  until  successor  is 
elected,  although  his  oflS.ce  as  secretary  has  expired  in 
the  mean  time:  Id. 
Seduction. 

Good  character  of  plaintiff  and  defendant's  family  may 
be  shown  by  the  plaintiff:    Parker  v.  Monteith,  7  Or. 
277. 
Evidence  of  the  flight  of  the  defendant  when  charged 

with  the  seduction  is  admissible:   Id. 
Plaintiff  may   prove    the   seduction   was    accomplished 

under  promise  of  marriage:  Id. 
Allegation  that  "  one  F.  P.,  the  daughter  of  the  plaintiflF," 

etc.,  sufficiently  alleges  that  she  is  the  daughter:  Id. 
So  allegation  that  daughter  is  sixteen  years  of  age  suffi- 
ciently alleges  that   she  is  under  twenty-one:  Lee  v. 
Coolcy,  13  Or.  433. 
Letter  from  plaintiflF's  daughter  to  defendant,  delivered 
by  the  plaintiff,  and  oral  reply  then  made  by  defend- 
ant, are  admissible  in  behalf  of  plaintiflF  on  the  footing 
of  conversations  between  the  parties:  Id. 
Statute  giving  woman  right  of  action  for  her  own  seduc- 
tion applies  only  where  both  are  not  equally  guilty: 
Breon  v.  Ilenkle,  14  Or.  494. 
PlaintiflF  in  such  case  cannot  recover  unless  defendant 
employed  such  artifice  and  deceit  as  is  calculated  to 
mislead  a  virtuous  woman:  Id. 
Self-defense.     See  Criminal  Law;  Homicide. 
Sentence.     See  Criminal  Law. 
Separate  Estate.     See  Husband  and  Wife. 
Service  of  Process.     See  Appeal  and  Error;  Summons. 
Services.     See  Compensation;  Lien;  Wages. 
Servitudes.     See  Easements. 
Set-offs  and  Counterclaims.     Sec  Divorce;  Equity. 

Set-oflF  of  amount  admitted  by  pleadings  in  former  action: 
Kafka  v.  Simon,  3  Or.  555. 


Set-offs  and  Counterclaims.  515 

Set-oflfs  and  Counterclaims  (continued). 

Answer  in  equity  held  not  such  pleading  of  counterclaim 
as  to  prevent  nonsuit:  Dove  v.  Hay  den,  5  Or.  500. 

Defense  in  a  suit  by  married  woman  for  equity  in  land, 
claiming  a  trust,  held  not  to  be  a  counterclaim:  Id. 

Counterclaim  to  a  suit  in  equity  must  be  one  upon  which 
defendant  might  maintain  action  against  plaintiff,  and 
must  be  connected  with  subject-matter  of  suit:  Dove  v. 
Hayden,  5  Or.  500;  Burrage  v.  B.  G.  &  Q.  ^l.  Co.,  12 
Or.  1G9. 

Counterclaim  irregularly  pleaded,  not  demurred  to,  is 
sufficient  after  reply:  Scheland  v.  Erpelding,  6  Or.  258. 

Recoupment  for  damages  on  breach  of  warranty  of  en- 
gine, in  action  for  the  price:  Drake  v.  Sears,  8  Or.  209. 

Payment  on  note  cannot  be  pleaded  as  counterclaim  in  a 
suit  on  the  note,  but  may  be  proved  under  general  alle- 
gation of  payment:  Hendrix  v.  Gore,  8  Or.  406. 

Payment  on  a  mortgage  is  not  a  cause  of  suit  which  must 
be  pleaded  as  a  counterclaim  in  a  suit  to  foreclose  the 
mortgage:  Id. 

One  liable  to  a  sheriff  to  indemnify  him,  or  who  has  in- 
demnified him  for  an  illegal  levy,  is  not  entitled  to  set 
off  a  prior  judgment  against  the  owner  of  the  property 
upon  the  judgment  which  the  latter  obtains  against  the 
sheriff  for  the  wrongful  taking:  Ladd  and  Bush  v.  Fer- 
guson and  McFadden,  9  Or.  180. 

Right  of  set-off  does  not  exist  against  a  judgment  for 
costs  which  has  previously  been  assigned:  Id. 

A  legal  demand,  not  liquidated,  and  not  connected  with 
the  subject-matter  of  the  suit,  cannot  be  pleaded  as  a 
set-off  in  equity:  Burrage  v.  B.  G.  &  Q.  M.  Co.,  12  Or. 
1C9. 

Partial  failure  of  consideration  may  be  set  up  as  a  defense 
to  an  action  on  a  bill  of  exchange,  and  the  defendant 
recoup  his  damages  though  unliquidated:  Da\ds  v. 
Wait,  12  Or.  425. 

A  claim  in  which  a  stranger  to  the  suit  is  interested  is 
not  a  proper  subject  of  set-off:  Williams  &  Co.  v.  Mil- 
ler &  Co.,  1  W.  T.  88. 

Sale  of  a  contract  to  furnish  supplies  to  the  United  States 
being  void,  no  valid  counterclaim  can  be  based  thereon: 
Turnbull  and  Jones  v.  Farnsworth,  1  W.  T.  444. 


516  Settlements. 

Settlements. 

No  interest  allowed  on  mutual  accounts  until  after  settle- 
ment and  balance  is  struck:  Catlin  v.  Knott,  2  Or.  321. 

Item  omitted  by  mistake  from  receipt  on  settlement  may 
be  shown  by  parol:  Williams  v.  Poppleton,  3  Or.  139. 

Settlement  of  doubtful  claims  out  of  court  are  favored  by 
the  courts:  Wells  v.  Neff,  14  Or.  66. 

Such  settlement  will  not  be  set  aside  for  ordinary  mistake 
of  law  or  fact:  Id. 

Party  seeking  to  set  same  aside  should  do  equity,  and  re- 
store the  property  or  rights  he  acquired  by  the  settle- 
ment: Id. 
Sewers.     See  Municipal  Corporations. 

Sheriflfe.     See  Fees;    Executions,  and  Proceedings  Supple- 
mental; Taxation. 

Service  of  complaint  by  deputy  in  hi-s  own  name,  insuffi- 
cient; Dennison  v.  Story,  1  Or.  272. 

Sheriff  cannot  reattach  property  on  new  claims  after  ac- 
cepting redelivery  bond:  Duncan  v.  Thomas,  1  Or.  314. 

County  commissioners  cannot  order  sheriff  to  give  new 
bond,  or  declare  his  office  vacant  on  failure  to  do  so: 
Ruckles  V.  State,  1  Or.  347. 

Nor,  after  approving,  of  their  own  motion  disapprove  his 
bond,  and  thus  change  the  vested  rights  of  the  parties 
to  the  bond:  Wren  v.  Fargo,  2  Or.  19. 

Requirement  to  sell  known  lots  and  parcels  separately  is 
directory:  Griswold  v.  Stonghton,  2  Or.  61;  Bank  of 
British  Columbia  v.  Page,  7  Or.  454. 

Powers  of  incumbent  cease  when  he  is  served  with  notice 
of  the  election  of  successor:  Warner  v.  Myers,  3  Or. 
218;  S.  C,  4  Or.  72. 

Contest  of  the  election  does  not  operate  to  stay  the  effect 
thereof:  Id. 

Emoluments  unearned  are  subject  to  control  of  the  legis- 
lature: Bird  V.  Wasco  County,  3  Or.  282. 

Sheriff  liable  with  his  sureties  for  failing  or  refusing  to 
levy:  Moore  v.  Floyd,  4  Or.  101;  Habersham  v.  Sears^ 
11  Or.  431. 

Rights  and  special  ownership  in  property  attached:  State 
V.  Cornelius,  5  Or.  46. 

Duty  to  obey  writ  of  execution  in  due  form;  receiving 
money  conditionally:  Richards  v.  Nye,  5  Or.  382. 


Sheriffs.  5]  7 

Sheriffs  (continued). 

"Sheriff"  in  section  110  of  the  Civil  Code  (sec.  112,  Hill's 
A.  L.),  relating  to  arrest  in  civil  cases,  includes  con- 
stables: Hume  V.  Norris,  5  Or.  478. 

Can  appoint  jailer,  and  is  responsible  for  his  acts,  and 
county  is  not  liable  for  his  compensation:  Crossen  v. 
Wasco  County,  G  Or.  215. 

Presumed  that  service  was  made  in  the  county  of  the 
sheriff  making  the  return:  Roy  v.  ITorsley,  G  Or.  270. 

Sheriff  may  be  indicted  for  converting  money  collected 
for  taxes:  State  v.  Dale,  8  Or.  229. 

In  sucli  action  it  may  be  proved  that  he  was  sheriff  and 
collected  from  individual  tax-payers:  Id. 

Money  so  collected  is  public  money  for  which  he  may  be 
punished  under  section  559  of  the  Criminal  Code 
(sec.  1772,  Hill's  A.  L.):  Id. 

Verdict  of  sheriff's  jury  under  section  284  of  the  Code 
(sec.  284,  Hill's  A.  L.)  operates  as  a  full  indemnity  to 
him  as  against  the  claimant  of  goods  taken  on  execu- 
tion: Remdall  V.  Swackhamer,  8  Or.  502;  Capital  Lum- 
bering Co.  V.  Ilall,  9  Or.  93;  Hexter  v.  Schneider,  14 
Or.  184. 

After  verdict  against  claimant  he  cannot  bring  replevin 
against  sheriff  for  the  goods:  Id. 

But  such  verdict  does  not  prevent  action  by  the  owner 
against  a  purchaser  at  the  sheriff's  sale:  Hexter  v. 
Schneider,  14  Or.  184, 

The  proceeding  is  not  judicial,  and  is  not  unconstitu- 
tional: Capital  Lumbering  Co.  v.  Hall,  9  Or.  93. 

Sheriff  may  be  invested  by  law  with  powers  and  duties 
not  usually  belonging  to  such  office:  Lane  v.  Coos 
County,  10  Or.  123. 

Sheriff  and  tax  collector  not  distinct  offices:  Id. 

Conipeneation  which  sheriff  received  under  the  act  of 
1880  includes  his  compensation  as  tax  collector,  and 
was  all  the  compensation  to  which  he  was  entitled:  Id. 

Liability  for  trespass  or  to  injunction  upon  garnishing  a 
creditor  on  defective  process:  Ladd  and  Bush  v. 
Ramsby,  10  Or.  207. 

Conversion  by  sheriff;  plea  of  justification  under  a  levy 
must  allege  that  the  debtor  was  the  owner  of  the  goods; 
Krcwson  v.  Purdoni,  11  Or.  266. 


518  Sheriffs. 

Sheriffs  (continued). 

Mandamus  does  not  lie  against  sheriff  to  compel  him  io 
levy,  unless  the  remedy  on  his  bond  is  shown  to  be  un- 
availing: Id. 

What  sufficient  complaint  in  action  for  failure  to  pay 
over  money  realized  on  execution:  Schneider  v.  Sears, 
13  Or.  G9. 

In  case  of  conflicting  le^des,  sheriff  must  not  decide  that 
his  levy  is  subordinate,  but  must  apply  to  the  court,  or 
must  take  indemity  bond  before  releasing:  Id. 

Sheriff  is  entitled  to  keeper's  fees  while  in  custody  of 
attached  property,  which  are  to  be  taken  out  of  the 
assets,  and  not  charged  as  costs  in  the  action:  Id. 

Duty  of  a  sheriff,  on  receiving  writ  of  attachment,  to  levy 
at  once  upon  sufficient  property  of  defendant  to  satisfy 
the  claim,  and  costs  and  expenses:  Gerdes  v.  Sears,  13 
Or.  358. 

When  that  is  done,  the  writ  is  fully  executed,  and  he 
must  return  it  at  once:  Id. 

It  is  unnecessary  to  hold  the  writ  to  keep  control  of  the 
property:  Id. 

It  is  imperative  upon  sheriff  to  remit  tax  improperly 
assessed,  upon  presentation  to  him  of  affidavit,  and  list 
of  property  liable  to  taxation  by  the  tax-payer:  Smith 
V.  King,  14  Or.  10. 

Has  no  power  to  inquire  into  the  truth  of  such  affidavit, 
or  to  resort  to  other  evidence,  but  must  strictly  follow 
the  statute:  Id. 

Mandamus  is  proper  remedy  to  compel  sheriff  who  re- 
fuses in  such  case  to  remit  tax  improperly  assessed:  Id. 

Verdict  of  sheriff's  jury  upon  trial  of  title  to  property 
taken  on  execution,  protects  sheriff,  but  does  not  pre- 
vent claimant  from  bringing  replevin  against  pur- 
chaser: Ilcxter  V.  Schneider,  14  Or.  184. 

Kot  entitled  to  commission  on  sale  on  execution  where 
judgment  creditor  bids  in  the  property,  and  no  money 
passes  into  sheriff's  hands:  Coleman  v.  Ross,  14  Or. 
349. 

And  in  such  case  sheriff  cannot  compel  the  purchaser  to 
pay  in  money  for  his  bid:  Id. 

May  be  compelled  to  amend  defective  return,  but  the 
court  has  no  power  to  compel  him  to  alter  a  return 


Solicitors.  519 

Sheriffs  (continued). 

regular  on  its  face:  "Washington  Mill  Co.  v.  Kinnear,  1 
W.  T.  99. 

If  sheriff  make  false  return,  party  injured  has  his  action 
against  him  for  damage:  Id. 

The  record  showing  process  was  served  by  coroner,  it  is 
presumed  that  sheriff  was  at  the  time  laboring  under 
disability  that  made  it  incumbent  on  coroner  to  act  in 
his  stead:  Rodolph  v.  Mayer,  1  W.  T.  133. 

Duty  of  sheriff,  where  the  decree  provides  for  it,  if  the 
debt  is  unsatisfied  by  sale  of  mortgaged  property  on 
foreclosure,  to  proceed  at  once  under  copy  of  order  of 
sale  to  levy  on  and  sell  other  property  of  debtor:  Hays 
V.  Miller,  1  W.  T.  143. 
Ships.     See  Admiralty;  Boats  and  Vessels;  Liens. 
Sidewalks.     See  Highways;  Municipal  Corporation*. 
Slander  and  Libel. 

Use  of  words  "conversations,"  "discourses,"  "publish,"  and 
"declare,"  sufficient  averment  of  publicity:  Hurd  v. 
Moore,  2  Or.  85. 

Former  rule  in  slander,  that  words  should  be  innocently 
construed,  if  possible,  is  now  changed  so  that  the  words 
are  taken  to  mean  what  is  generally  understood  there- 
by: Id. 

Slanderous  words  charging  heinous  crime,  actionable  'per 
se:  Shartle  v.  Hutchinson,  3  Or.  337;  Quigley  v.  !McKee, 
12  Or.  22. 

Truth  is  a  defense;  but  if  not  proved,  the  repeating  the 
charge  in  the  answer  is  an  aggravation  of  damages:  Id. 

Manner  and  acts  of  defendant,  at  time  of  speaking  the 
words,  may  be  considered  by  the  jury  to  explain  the 
words,  and  on  the  question  of  malice  and  damages: 
Leverich  v.  Frank,  6  Or.  212. 

Time  alleged  in  the  complaint  need  not  be  strictly 
proved;  proof  that  the  words  were  spoken  at  any  time 
before  the  time  alleged  is  suflQcient:  Quigley  v.  Mc- 
Kee,  12  Or.  22. 

What  words  are  actionable  per  se;  for  such  words  nomi- 
nal damages,  at  least,  are  recoverable:  Id. 
Societies.     See  Voluntary  Associations. 
Soldiers.     See  Militia;  Offices  and  Officers. 
Solicitors.     See  Attorneys. 


520  Sovereignty. 

Sovereignty.     See  Constitutional  Law;  Eminent  Domain; 

Taxation. 
Special  Verdict.     See  Jury  and  Jury  Trial. 
Specific  Performance. 

When  the  rights  of  the  heirs  of  deceased  obligee  and  sur- 
viving obligee,  under  a  bond  for  a  deed,  are  doubtful, 
Bpecific  performance  by  the  obligor  will  not  be  ordered 
until  such  rights  are  settled:  Knott  v.  Stephens,  3  Or. 
2GD. 

Where  all  the  parties  are  not  before  the  court,  decree  not 
granted  unless  the  interest  of  each  can  be  ascertained 
in  the  suit:  Id. 

No  attempt  having  been  made  to  pay  purchase  price,  and 
property  having  greatly  increased  in  value,  relief  re- 
fused: Id. 

Not  granted  against  a  married  wofnan  on  contract  to 
convey  her  land  made  by  her  and  her  husband  during 
coverture:  Frarey  v.  Wheeler,  4  Or.  190. 

But  value  of  improvements  erected  by  party  let  into  pos- 
session under  the  contract  is  a  charge  on  the  land:  Id. 

Contract  must  be  certain  and  definite  and  fully  proved: 
Odell  V.  Morin,  5  Or.  96;  Brown  v.  Lord,  7  Or.  302; 
Wagonblast  v.  Whitney,  12  Or.  83. 

This  rule  is  applied  more  strictly  against  assignees  and 
representatives  of  contracting  parties:  Id. 

Agreement  must  be  fair  and  just,  mutual,  and" certain  in 
its  terms:  Whitcaker  v.  Vanschoiack,  5  Or.  113; 
Wagonblast  v.  Whitney,  12  Or.  83. 

Where  terms  have  been  varied  by  parol,  courts  will  not 
ordinarily  decree  specific  performance:  Id. 

Suit  is  not  barred  by  a  judgment  in  a  former  action  on 
bond  for  a  deed,  where  the  parties  and  the  property  af- 
fected are  the  same,  but  the  plaintiff  has  since  acquired 
a  new  interest  in  the  bond:  Knott  v.  Stephens,  5  Or.  235. 

Relief  discretionary  and  dependent  upon  the  equitable 
circumstances:  Snider  v.  Lchnhcrr,  5  Or.  385. 

May  be  granted  to  party  in  possession  under  imperfect 
deed;  in  such  case,  deed  is  construed  as  a  contract  to 
convey:  Hill  v.  Cooper,  6  Or.  181. 

Possession,  relied  on  as  part  performance,  when  contract 
was  not  in  writing,  must  be  visible  and  exclusive,  and 
taken  under  the  contract:  Brown  v.  Lord,  7  Or.  302. 


Stake-holders.  521 

Specific  Performance  (continued). 

Improvements  erected  by  son  on  father's  land  no  evidence 
of  gift  of  the  land:  Id. 

The  boundaries  of  the  land  must  be  clearly  defined  in  the 
contract  to  warrant  relief:  Id. 

Contract  to  support,  in  consideration  of  land  conveyed, 
will  bo  enforced  in  equity,  and  the  land  charged  with 
such  support:  Watson  v.  Smith,  7  Or.  448. 

Parol  promise,  without  consideration,  for  future  leasing 
for  years  gives  promisee  no  rights  to  specific  perform- 
ance, though  without  request  he  goes  into  possession: 
Pulse  V.  Ilamer,  8  Or.  251. 

Possession  under  an  agreement  to  convey  in  which  de- 
scription was  defective,  held  sufficient  to  identify  the 
land:  Richards  v.  Snider,  11  Or.  197. 

In  a  proper  case,  it  is  as  much  a  matter  of  course  for 
equity  to  grant  specific  performance  as  for  a  court  of 
law  to  give  damages:    Richards  v.  Snyder,  11  Or.  501. 

When  time  is  not  of  the  essence  of  the  contract,  mere  lapse 
of  time  without  laches  does  not  bar  relief:  Id. 

To  take  a  parol  contract  out  of  the  statute  of  frauds,  the 
evidence  must  show  the  quantity  of  land,  define  its 
boundaries,  and  fix  the  consideration:  Wagonblast  v. 
Whitney,  12  Or.  83. 

Vendor  may  have  remedy  against  vendee  to  enforce  pay- 
ment of  purchase  price:  Sanford  v.  Wheelan,  12  Or. 
301. 

But  under  a  covenant  to  convey  free  of  encumbrances, 
vendor  cannot  have  specific  performance  until  he  re- 
moves or  deducts  for  existing  liens:  Id. 

Defendant  may  plead  in  his  answer  a  contract  different 
from  the  one  stated  in  complaint:  Thompson  v.  Hawley, 
14  Or.  199. 

IfTsuch  case  if  the  court  finds  the  contract  pleaded  in  the 
answer  to  be  the  true  contract,  defendant  is  entitled  to 
a  decree  in  accordance  therewith:  Id. 

Where  it  appears  that  the  contract  to  convey  was  not  to 
convey  by  a  good  and  sufficient  deed,  but  simply  to  con- 
,  vey  whatever  title  vendor  had,  that  is  all  vendee  can 
insist  upon:   Id. 
Spirituous  Liquors.     See  Liquor  Laws. 
Stake-holders.     See  Wagers. 


522  Stare  Decisis. 

Stare  Decisis.     See  Law  of  the  Case. 

Stare  decisis  is  the  pohcy  of  the  courts,  and  the  doctrine 
should  not  be  departed  from  except  when  the  former 
case  has  been  decided  contrary  to  principle:  State  v. 
Clark,  9  Or.  466;  Multnomah  County  v.  Sliker,  10  Or. 
65;  Despain  v.  Crow,  14  Or,  404. 

The  principle  is  particularly  applicable  where  court  has 
declared  the  constitutionality  of  a  statute  and  is  called 
upon  to  pass  upon  the  question  again:  Multnomah 
County  V.  Sliker,  10  Or.  65. 

Case  criticised  but  followed  on  the  principle  of  stare  de- 
cisis: Corvallis  v.  Stock,  12  Or.  391;  Sheridan  v.  Salem, 
14  Or.  328. 

Former  adjudication  should  not  be  disturbed  eiccept  for 
weighty  reasons:  Chat  Walts  v.  Territory,  1  W.  T.  409. 
State.     See  Taxation. 

The  immunity  of  the  state  as  a  party  defendant  extends 
only  to  its  being  a  party  of  record:  Dunn  v.  State  Uni- 
versity, 9  Or.  357. 

Such  immunity  does  not  extend  to  its  agents,  who  hold 
the  title  and  possession  of  real  property,  in  a  suit  con- 
cerning the  same:  Id. 

Private  parties  cannot  use  the  name  of  the  state  to  try 
private  controversy  by  quo  warranto:  Wilson  and  Wake- 
man  V.  Shively,  10  Or.  267. 

State  is  proper  party  to  bring  suit  for  an  accounting 
against  persons  having  charge  of  funds  arising  from  the 
sale  of  school  lands:  State  v.  Cliadwick  and  Brown,  10 
Or.  423. 

"  States,"  as  used  in  the  act  of  Congress  of  1837,  regard- 
ing pilotage,  includes  "  territories  ":  Edwards  v.  Steam- 
ship Panama,  1  Or.  418;  Neil  v.  Wilson,  14  Or.  410. 
State  Treasurer.     See  Treasurer  of  State. 
State  University.     See  University. 
Statute  of  Frauds. 

Contract  to  convey  land  may  be  abandoned  by  parol: 
Gutlirie  v.  Thompson,  1  Or.  353. 

Unless  contract  is  necessarily  incapable  of  performance 
within  a  year,  not  within  statute:  Hedges  v.  Strong,  3 
Or.  18;  Southwell  v.  Breezley,  5  Or.  143;  S.  C,  5  Or.  458. 

Not  necessary  to  allege  in  complaint  that  the  promise  was 
in  writing:  Id.:  Albee  v.  Albee,  3  Or.  321. 


Statute  of  Frauds.  523 

Statute  of  Frauds  (continued). 

If  promise  to  pay  debt  of  another  arises  out  of  new  con- 
sideration between  the  new  parties,  it  is  not  within 
statute:  Id.;  Ludwick  v.  Watson,  3  Or.  250. 

Not  necessary  to  allege,  in  pleading,  that  the  agreement 
for  sale  of  land  was  written:  Albee  v.  Albee,  3  Or.  321. 

In  case  of  collateral  undertaking,  under  the  statute,  the 
plaintiff  should  declare  specially:  Hayden  v.  Stead- 
man,-  3  Or.  550. 

Verbal  lease  for  two  years  cannot  be  proved  to  establish 
lease  for  one  year,  good  under  the  statute:  Noyes  v. 
Stauff,  5  Or.  455. 

Partnership  agreement,  relating  in  part  to  lands,  is  not 
void  in  equity,  though  not  in  writing,  and  may  be 
proved  by  parol:  Knott  v.  Knott,  6  Or.  142. 

Agreement  for  the  sale  of  personalty  of  more  than  fifty 
dollars  value  must  be  written,  and  express  the  consider- 
ation, and  be  subscribed  by  the  party  to  be  charged: 
Corbitt  V.  Salem  Gaslight  Co.,  6  Or.  405. 

Possession  of  land,  relied  on  as  part  of  performance,  to 
take  the  contract  out  of  the  statute,  must  be  visible  and 
notorious,  and  taken  under  the  contract:  Brown  v.  Lord, 
7  Or.  302. 

Person  going  into  possession  without  request,  on  parol 
promise  of  a  future  written  lease  for  years,  gains  no 
right  as  against  the  owner:  Pulse  v.  Ilamer,  8  Or.  251. 

Where  persons  own  land  through  which  a  stream  flows, 
and  by  parol  agree  upon  its  division  and  appropriation, 
and  partly  perform  the  agreement,  equity  will  enforce: 
CofFman  v.  Robbins,  8  Or.  278. 

Parol  proof  to  establish  a  resulting  trust  in  land  is  admis- 
sible, but  not  to  prove  agreement  to  sell  the  interest  of 
a  cestui  que  trust:  Chenoweth  and  Johnson  v.  Lewis,  9 

^Ot.  150. 

Parol  agreement  to  sell  an  equitable  interest  in  land  is 
void:  Id. 

Part  performance,  to  take  the  case  out  of  the  statute,  must 
be  of  the  identical  contract  alleged,  which  must  be  cer- 
tain and  definite,  and  proved  as  alleged:  Plymale  v. 
*  Corastock,  9  Or.  318. 

When  parol  agreements  between  adjoining  owners  respect- 
ing boundary  are  within  the  statute:  Lennox  v.  Hen- 
dricks, 11  Or.  33. 


524  Statute  or  Fkauds. 

Statute  of  Frands  (continued). 

Parol  agreement  to  purchase  land  with  purchaser's  own 
money,  and  to  hold  same  in  trust  for  a  third  party,  is 
void:  Kelly  v.  Ruble,  11  Or.  75. 

To  take  parol  contract  to  convey  land  out  of  the  statute, 
its  terms  must  be  certain,  and  the  boundaries  and  con- 
sideration fully  proved:  Wagonblast  v.  Whitney,  12 
Or.  83. 

Contract  for  sale  of  land  contained  in  letters  between  the 
parties  being  uncertain,  parol  evidence  of  former  under- 
standing of  the  parties  admissible  in  construing:  Fisk 
V.  Henarie,  13  Or.  156. 

Parol  evidence  of  contract  for  sale  of  land  is  admissible  to 
be  followed  by  proof  of  a  subsequent  written  recognition 
by  party  to  be  charged:  Id, 

Agreement  by  a  vendor  of  land  to  pjly  a  balance  of  pur- 
chase-money to  a  stranger  to  tlie  contract  is  not  within 
the  statute:  Strong  v.  Kamm,  13  Or.  172. 

Where  a  contract  contains  two  mutual  promises,  and  is 
signed  only  by  the  party  suing  upon  it,  the  other  party 
may  successfully  interpose  the  defense  of  the  statute: 
Hawley,  Dodd,  &  Co.  v.  Kenoyer,  1  W.  T.  609. 

Contract  held  not  to  be  a  sale,  and  not  within  the  statute: 
P.  S.  I.  Co.  V.  Worthington,  2  W.  T.  472. 
Statute  of  Limitations.     See  Adverse  Possession. 

On  substitution  of  new  term  of  limitation  by  a  new  law, 
time  elapsed  under  old  law  is  to  be  computed:  Mc- 
Laughlin V.  Hoover,  1  Or.  131. 

WHien  the  cause  of  action  is  barred,  repeal  of  the  statute 
does  not  destroy  the  bar:  Baldro  v.  Tolmie,  1  Or.  176. 

Pleading  that  the  action  did  not  accrue  within  six  years  is 
sufficient,  though  the  statutory  limitation  is  five  years, 
since  the  latter  is  included  in  the  period  pleaded:  Id. 

The  statute  must  be  pleaded,  or  cannot  be  taken  advan- 
tage of  on  error:  Steamer  Senorita  v.  Simonds,  1  Or. 
274. 

Where  there  is  no  presentment  of  claim  against  estate 
within  statutory  period  therefor,  claim  is  barred:  Zach- 
ary  v.  Chambers,  1  Or.  321. 

Claim  against  the  state,  presented  to  legislature  and  not 
paid,  and  afterwards  sued  on  under  a  statute  enacted 
to  provide  for  a  right  of  action  against  the  state,  is  not 


Statute  of  Limitations.  525 

Statute  of  Limitations  (continued). 

barred,  thougli  .six  years  liave  elapsed  since  presenta- 
tion to  the  legislature,  there  being  no  laches,  and  the 
plaintiff  suing  within  a  reasonable  time  after  the  stat- 
ute gave  him  a  remedy:  Ketchum  v.  State,  2  Or.  103. 

Domestic  judgment  is  not  within  statute  of  limitations, 
and  may  be  kept  alive  until  paid:  Murch  v.  :Moore,  2 
Or.  189;  Strong  v.  Barnhart,  5  Or.  49G. 

The  statute  begins  to  run  from  the  time  a  payment  is  last 
made  on  bill  or  note:  State  v.  Ilulin,  2  Or.  307;  Suth- 
erlin  v.  Roberts,  4  Or.  378;  Creighton  v.  Vincent  10 
Or.  5G. 

Payment  of  interest  or  principal  of  collections  by  attorney 
prevents  statute  running  against  client  for  collections 
retained  by  attorney:  Torrence  v.  Strong,  4  Or.  39. 

Absence  of  mortgagor  from  state  does  not  prevent  statute 
from  running  against  rights  to  foreclose:  Anderson  v 
Baxter,  4  Or.  105. 

Statute  goes  to  the  remedy  by  action  or  suit:  Id. 

Equity  acts  by  analogy  to  the  law  concerning  limitations: 
Id. 

A  suit  for  foreclosure  is  a  suit  in  rem,  and  the  statute  of 
limitations  does  not  apply  to  such  a  proceeding  in 
equity,  there  being  no  analogy  to  actions  at  law:  Id. 

Mortgagee  in  possession  occupies  no  more  favorable  posi- 
tion than  if  out:  Id. 

Payment  by  operation  of  law  without  request  of  debtor 
does  not  prevent  statute  from  running:  Id. 

Foreclosure  suit  is  not  a  suit  to  determine  interest  in  real 
property  within  section  378  of  the  Code  (sec.  382,  Hill's 
A.  L.).  and  is  not  governed  by  statute  of  limitations  re- 
garding such  suits:  Id. 

Payment  by  administrator  of  deceased  joint  debtor  pre- 
vents statute  running  against  survivor:  Sutherlin  v 
Ptoberts:  4  Or.  378. 
Under  section  25  of  the  Code,  part  payment  is  the  test 
whether  suit  is  barred,  and  if  not  barred,  suit  may  be 
founded  on  the  original  promise:  Id. 
Any  person  who  could  be  compelled  to  pay  may  make 

such  payment:  Id. 
Amendment  limiting  period  to  less  time  for  bringing  suit 
applies  only  to  causes  accruing  subsequently:  Pitman 
V.  Bump,  5  Or.  17. 


52G  Statute  of  Limitations. 

Statute  of  Limitations  (continued). 

Mortgage  niay  be  foreclosed  after  the  notes  are  barred: 
Myer  v.  Beal,  5  Or.  130;  Gray  v.  Holland,  9  Or.  512. 

Statute  does  not  extinguish  the  debt,  but  simply  suspends 
the  remedy:  Id.;  Goodwin  v.  Morris,  9  Or.  322;  but  see 
Parker  v.  Metzger,  12  Or.  407. 

Suit  on  official  undertaking  is  not  an  action  for  the  recov- 
ery of  a  penalty  or  forfeiture  within  subdivision  2  of 
section  7  of  the  Code  (sec.  7,  Hill's  A.  L.):  Howe  v. 
Taylor,  6  Or.  284. 

Statute  begins  to  run  against  debt  created  in  another 
state,  by  person  subsequently  removing  to  Oregon,  when 
created,  and  not  when  he  arrives  in  Oregon:  McCormick 
V.  Blanchard,  7  Or.  232. 

Answer  pleading  statute  of  another  state  in  bar  must  al- 
lege that  the  cause  of  action  arose  in  that  state,  and  was 
between  non-residents  of  this  state:  Crawford  v.  Roberts, 

8  Or.  324. 

Loss  of  a  judgment  roll  will  not  be  ground  for  the  inter- 
ference of  a  court  of  equity  to  prevent  statute  running 
on  an  action  of  ejectment  founded  thereon,  when  the 
roll  was  found  before  the  time  expired:  Farris  v.  Hayes, 

9  Or.  81. 

The  statute  affects  the  remedy  only,  and  not  the  right  or 
title  to  personal  property:    Goodwin  v.  IMorris,  9  Or. 

In  the  absence  of  allegation  and  proof  to  the  contrary, 
common-law  rule  of  limitations  presumed  to  prevail  in 
another  state:  Id. 

Payment  of  part  of  debt,  with  the  understanding  that  such 
jmyment  is  to  be  applied  thereon,  revives  action  barred: 
Creighton  v.  Vincent,  10  Or.  56. 

Section  25  of  the  Code  (sec.  25,  Hill's  A.  L.)  refers  only 
to  payments  made  on  contracts  before  the  statute  has 
run  against  them,  and  fixes  by  such  payment  a  new 
date  from  which  the  limitation  of  action  thereon  begins 
to  run  <Je  novo:  Id. 

In  trover,  statute  begins  to  run  at  time  of  the  conversion, 
and  action  must  begin  within  six  years  thereafter: 
Sheppard  v.  Yocum  and  De  Lashnmtt,  10  Or.  402. 

"  Right  of  suit "  for  divorce,  within  the  meaning  of  section 
494  of  the  Code,  does  not  exist,  when  the  marriage  was 


Statute  of  Limitations.  527 

Statute  of  Limitations  (continued). 

not  solemnized  in  the  state,  until  the  party  has  been  a 
resident  for  a  year:  Jacobsen  v.  Jacobsen,  11  Or.  451. 

Limitation  of  actions  between  donation  claimants  inuk-r 
section  378,  Civil  Code,  as  amended,  applies  only  to  rival 
claimants  to  same  tract  as  patentees:  Baker  v.  Wood- 
ward, 12  Or.  3. 

Adverse  possession  of  realty  for  the  statutory  period  does 
not  simply  bar  the  remedy  of  the  owner,  but  creates  a 
title  in  the  possessor  as  effectual  as  a  written  title: 
Parker  v.  Metzger,  VI  Or.  407. 

Amendment  of  1878  (sec.  4,  Hill's  A.  L.),  limiting  period 
for  beginning  actions  concerning  realty  from  twenty  to 
ten  years,  gives  a  year  after  act  takes  effect  in  which  to 
bring  certain  actions:  Johnson  v.  Knott,  13  Or.  308. 

Demurrer  on  the  ground  that  the  statute  has  run  does  not 
lie  until  the  full  statutory  period  has  elapsed,  though 
in  equity  the  delay  for  less  time  may  be  considered  in 
granting  relief:  Powell  v.  Dayton  etc.  R.  R.  Co.,  13  Or. 
446. 

Mother  of  infant,  with  whom  he  lives,  cannot  gain  title  to 
infant's  land,  which  they  occupy  as  family  residence, 
by  lapse  of  time  under  the  statute  of  limitations:  Law- 
rence V.  Lawrence,  14  Or.  77. 

Occupation  of  one  claiming  adversely  under  a  writing 
purporting  to  be  a  quit-claim  deed  of  donation  claim 
executed  before  the  expiration  of  the  four  years'  resi- 
dence, the  same  being  illegal,  cannot  ripen  into  title  by 
statute  of  limitations:  Bullenev.  Garrison,  1  W.  T.  587. 

Complaint,  on  a  note  otherwise  barred,  alleged  payments 
thereon,  not  directly,  but  merely  inferentially,  and  was 
held  bad  on  demurrer:  Yesler  v.  Oglesbee,  1  W.  T.  G04. 

]j^ transitory  actions,  statute  of  limitations  of  the  forum, 
not  of  the  place  where  contract  was  made,  governs: 
Adams  v.  Kelly,  1  W.  T.  263. 

Maker  of  note  given  in  California,  moving  to  "Washington 
Territory  before  the  statute  of  California  had  run,  can- 
not thereafter,  in  a  court  of  Washington  Territory,  inter- 
'pose  the  California  statute:  Id. 

Allegations  of  statute  of  limitations  in  answer  held  a  neg- 
ative pregnant,  which  plaintiff'  need  not  denv:  Gam- 
mon V.  Dyke,  2  W.  T.  266. 


528  Statute  of  Limitations. 

Statute  of  Limitations  (continued). 

Payment  and  acceptance  of  interest  on  a  note  relieves  it 
from  the  statute:  Koslowski  v.  Yesler,  2  W.  T.  407. 

When  it  appears  on  the  face  of  the  complaint  that  the 
claim  is  barred,  advantage  may  be  taked  by  demurrer: 
Wilt  V.  Buchtel,  2  W.  T.  417. 

Suit  to  redeem  property  sold  under  foreclosure  sale  is  gov- 
erned by  section  33  of  the  Code,  prescribing  two  years, 
and  not  by  the  provision  relating  to  real  actions:  Parker 
V.  Dacres,  2  W.  T.  439. 
Statutes.  See  Codes;  Constitutional  Law;  Evidence;  Pub- 
lic Lands;  Statute  of  Frauds;  Statute  of  Limitations; 
and  see  particular  topics. 

1.  Publication  and  Taking  Effect. 

2.  Validity. 

3.  Title  and  Subject. 

4.  Construction. 

5.  Local  and  Special  Acts. 

6.  Mandatory  and  Directory  Provisions. 

7.  Repeal. 

8.  Amendment. 

9.  Rights  and  Remedies. 

1.    Publication  and  Taking  Effect, 

Legislature  cannot  create  an  emergency,  but  may  declare 
that  certain  existing  facts  create  one,  so  as  to  give  an 
act  effect  from  its  passage  and  approval  by  the  governor: 
McWhirter  v.  Brainard,  5  Or.  426. 

Submitting  to  vote  selection  of  location  of  county  seat 
merely  provides  mode  of  taking  effect  of  the  statute,  and 
does  not  delegate  legislative  power:  Id. 

Compilers  of  the  General  Laws  were  authorized  simply  to 
collect,  not  to  comment  on  the  laws,  and  the  text  of  the 
original  acts  is  authoritative:  Springfield  Milling  Co.  v. 
Lane  County,  5  Or.  265. 

In  the  compilation  of  1872,  the  placing  of  a  section  of  an 
act  printed  in  the  Miscellaneous  Laws,  with  the  Crim- 
inal Code,  does  not  change  the  legal  effect  of  such  sec- 
tion: State  V.  Gaunt,  13  Or.  115. 

Provisions  of  a  law  cannot  be  incorporated  in  the  Crim- 
inal Code  without  legislation:   Id. 

Bill  regularly  passed  will  not  be  defeated  by  mutilation 
of  the  enacting  clause,  where  this  appears  to  have  been 


Statutes.  629 

Statutes  (continued). 

done   witliout    authority   of  the   legislature:    State    v. 
Wright,    14   Or.    8G5. 

As  a  general  rule,  statutes  take  immediate  effect  in  Wash- 
ington Territory:  Leschi  v.  Territory,  1  W.  T.  13. 

Act  of  1850,  regulating  territorial  courts  and  requiring 
judges  to  assign  places  for  holding  courts,  took  effect 
when  the  order  was  made  pursuant  to  the  act:  Boyer  v. 
Fowler,  1  W.  T.  101. 

Act  locating  the   seat  of  government   at  Vancouver   is 
made  contingent  by  an  act  of  the  same  session  submit- 
ting to  vote  of  the  people  the  location  thereof:  Seat  of 
Government  Case,  1  W.  T.  115. 
2.   Validity. 

Provisional  government  had  power  to  enact  binding  laws 
before  the  territory  was  organized:  Baldro  v.  Tolmie,  1 
Or.  17G. 

The  act  of  the  territorial  assembly  suspending  payment 
of  the  claim  in  question  held  valid:  Young  v.  Oregon, 

I  Or.  213. 

The  act  of  1868  (c.  39,  tit.  1,  Hill's  A.  L.),  relating  to 
ditches,  is  not  unconstitutional  as  taking  property  for 
private  use:  Seely  v.  Sebastian,  4  Or.  25. 

Appendix  to  Criminal  Code  is  a  part  thereof,  and  the 
forms  there  given  are  sufficient:  State  v.  Dodson,  4 
Or.  64. 

Where  some  provisions  are  void  as  unconstitutional,  other 
distinct  provisions  are  not  necessarily  invalid:  State  v. 
Wiley,  4  Or.  184;  Fleischner  v.  Chadwick,  5  Or.  152. 

Every  intendment  is  in  favor  of  the  validity  of  an  act  of 
the  legislature:  Clinc  and  Newsome  v.  Greenwood  and 
Smith,  10  Or.  230;  Cresap  v.  Gray,  10  Or.  345;  Crowley 
v.  State,  11  Or.  512. 

Th^mortgage  tax  law  is  not  invalid:  Mumford  v.  Sewall, 

II  Or.  G7;  Crawford  v.  Linn  County,  11  Or.  482. 
Mortgage  tax  law  does  not  impair  the  obligation  of  con- 
tracts: Mumford  v.  Sewall,  11  Or.  67. 

Semhle,  the  law  is  not  a  bill  for  raising  revenue:  Id. 
Original  bill  on  file  showing  that  it  was  read  on  three 

several  days,  the  act  is  valid  though  the  journal  does 

not  show  the  fact:  Id. 
A  statute  long  recognized  as  binding  should  not  be  de- 

Ou.  Dio.— 34 


530  Statutes. 

Statutes  (continued). 

clared    invalid   unless  unequivocally  so:    Crawford  v. 
Beard,  12  Or.  447. 

An  act  to  license  sale  of  liquor  is  not  a  bill  to  raise 
revenue,  and  may  originate  in  either  bouse:  State  v. 
Wright,  14  Or.  365. 

Where  one  branch  of  the  legislature  amended  an  act,  and 
the  amendment  was  improperly  stated  to  the  other 
house,  which  voted  to  concur,  it  seems  that  the  act 
never  became  a  law:  Id. 

An  act  without  enacting  clause  and  without  date  is  void: 
Seat  of  Government  Case,  1  W.  T.  115. 

Act  providing  that  seat  of  government  shall  be  and  re- 
main at  Vancouver  exceeded  the  power  of  the  legisla- 
ture under   the  Organic  Act  to  "change"  the  seat  of 
government:  Id. 
5,   Title  and  Subject. 

"An  act  to  change  the  location  of  the  county  seat  of 
Umatilla  County"  sufficiently  expresses  the  subject- 
matter,  including  election,  selection,  etc.:  Simpson  v. 
Bailey,  3  Or.  515. 

So  an  act  to  locate  the  county  seat  of  Union  County: 
Moffitt  V.  Coffin,  5  Or.  426. 

But  an  act  to  regulate  and  tax  foreign  banking,  express, 
and  insurance  companies  (c.  33,  Hill's  A.  L.)  cannot 
include  other  corporations  of  a  different  character: 
Singer  M.  Co.  v.  Graham,  8  Or.  17. 

"An  act  to  punish  and  prevent  gambling"  (c.  45,  Hill's 
A.  L.)  expresses  but  one  subject,  and  is  valid  though  it 
provide  civil  and  criminal  remedies:  O'Keefe  v.  Weber, 
14  Or.  55. 

Act  adding  certain  sections  to  a  city  charter  is  not  a  re- 
vision or  amendment,  but  a  supplement,  the  subject  of 
which  is  sufficiently  disclosed  in  the  title:  David  v. 
Portland  Water  Company,  14  Or.  98;  Sheridan  v. 
Salem,  14  Or.  328. 

Title  need  not  specify  the  object  of  the  act  in  all  its  par- 
ticulars; may  state  subject  generally:  Id. 

An  act  providing  liquor  license  in  towns  and  cities  as 
well  as  in  counties,  held  amendatory  of  certain  muni- 
cipal charters,  which  subject  was  not  indicated  by  the 
title:  State  v.  Wright,  14  Or.  365. 


Statctes.  531 

Statutes  (continued). 

Act  relative  to  Skamania  County,  statutes  1865,  page  44, 
is  void  because  the  object  of  the  act  is  not  expressed  in 
the  title:  Clarke  v.  Brazee,  1  W.  T.  199. 
4.   Construction. 

A  body  of  acts  arc  construed  as  one,  if  in  imri  materia, 
and  not  conflicting:  ^IcLaughlin  v.  Hoover,  1  Or.  31; 
Davidson  v.  Carson,  1  W.  T.  307. 

Criminal  statutes  are  to  be  strictly  construed:  Horner  v. 
State,  1  Or.  267;  Remington  v.  State,  1  Or.  281. 

Requirements,  imperative  in  language,  cannot  be  con- 
trolled by  any  general  provisions:  Zachary  v.  Cham- 
bers, 1  Or.  321. 

It  is  proper  to  look  into  the  circumstances  and  necessities 
of  an  enactment  to  effectuate  the  intent:  Keith  v.  Quin- 
ney,  1  Or.  364;  Smith  v.  Smith,  3  Or.  363. 

Duty  devolves  on  courts  to  determine  what  laws  of  the 
United  States  are  "  applicable "  to  Oregon  Territory 
under  the  Organic  Act:  United  States  v.  Tom,  1  Or.  26; 
Lownsdale  v.  Portland,  1  Id.  382. 

Construction  given  by  the  executive  department  of  the 
United  States  is  not  binding  on  courts:  Id. 

Statute  of  limited  application  must  be  confined  to  subjects 
to  which  it  is  expressly  applicable:  Whiteaker  v.  Haley, 
2  Or.  128. 

Statute  repealing  remedy  will  not  be  construed  to  effect 
pending  actions  or  suits:  Newsom  v.  Greenwood,  4  Or. 
119. 

Court  may  determine,  from  the  import  of  language  used, 
the  intention  of  legislature:  Ankeny  v.  Multnomah 
County,  4  Or.  271. 

Effect  should  be  given  to  all  of  the  words:  Rugh  v.  Otten- 
heimer,  6  Or.  231;  Taylor  v.  Umatilla  County,  6  Or.  401. 

\Vords  of  limitation,  when  unequivocal,  will  prevail  to 
limit  the  general  language:  Taylor  v.  Umatilla  County, 
6  Or.  401. 

When  a  statute  of  another  state  is  adopted  in  Oregon,  the 
decisions  of  that  state  are  authority  for  its  construction: 
Gerrish  v.  Gerrish,  8  Or.  351;  Mclntyrc  v.  Kamm,  12 
Or.  233;  Trabant  v.  Rummell,  14  Or.'l7. 

Statutes  which  give  costs  must  be  construed  strictly: 
Jackson  v.  Siglin,  10  Or.  92. 


532  Statutes. 

Statutes  (continued). 

Legal  terms  used  and  not  defined  in  a  statute  are  given 
their  accepted  legal  definition:  Crawford  v.  Linn 
County,  11  Or.  482. 

Title  of  an  ordinance  may  be  resorted  to  in  determining 
the  intention  of  city  council:  Portland  v.  Schmidt,  13 
Or.  17. 

Statute  giving  cumulative  damages  to  party  aggrieved  is 
remedial,  not  a  criminal  or  a  penal  statute,  and  the  ac- 
tion for  the  recovery  is  a  civil  action:  O'Keefe  v.  Weber, 
14  Or.  55. 

Preamble  and  title  may  be  resorted  to,  to  aid  in  constru- 
ing: Seat  of  Government  Case,  1  W.  T.  115. 

Statute  in  derogation  of  the  common  law  must  be  strictly 
construed:  Hays  v.  Miller,  1  W.  T.  143 

Must  be  construed  with  reference  to  all  its  parts,  and  if 
practicable,  in  a  way  that  the  whole  may  stand:  David- 
son V.  Carson,  1  W.  T.  307. 

Court  will  give  statutes  retrospective  effect,  if  such  be  the 
obvious  intent;  the  legislature,  notwithstanding  such 
construction,  may  modify  remedies  and  give  advantages 
to  a  party  he  did  not  before  possess:  Garrison  v. 
Cheeney,  1  W.  T.  489. 

The  word  "  month,"  occurring  in  a  statute,  when  the  con- 
trary is  not  therein  indicated,  means  a  lunar  month,  as 
at  common  law:  Hale  v.  Furch,  1  W.  T.  517. 

The  word  "  assessment,"  occurring  in  the  Organic  Act,  is 
employed  in  a  common  and  general  sense:  Seattle  v. 
Yesler,  1  W.  T.  572. 

So  long  as  a  sensible  construction  can  be  given  compat- 
ible with  the  organic  law,  a  statute  should  not  be  pro- 
nounced invahd:  Coleman  v.  Yesler,  1  W.  T.  591. 
5.   Local  and  Special  Acts. 

What  is  a  local  or  special  act:  Allen  v.  Hirsch,  8  Or.  412; 
Crawford  v.  Linn  Co.,  11  Or.  482. 

Wagon  road  act  held  not  in  conflict  with  constitutional 
prohibition  of  local  or  special  laws  concerning  roads: 
Id. 

An  act  to  provide  for  the  compensation  of  sheriff's  and 
clerks  in  certain  counties,  held  to  be  a  local  law  regu- 
lating practice  in  courts  of  justice:  Manning  v.  Klip- 
pel,  9  Or.  3G7. 


Statutes.  533 

Statutes  (continued). 

Mortgage  tax  law  is  not  a  special  law:  Crawford  v.  Linn 

Co.,  11  Or.  482. 
Whether  a  law  be  public  or  private  (special)  is  deter- 
mined by  the  subject-matter:  Id. 
Game  law,  extending  to  but  five  counties,  is  not  uncon- 
stitutional as  granting  a  special  privilege:   Hayes  v. 
Territory,  2  W.  T.  286. 
6.   Mandatory  and  Directory  Provisions. 
.Provisions  of  statute  in  reference   to  authentication  of 
deeds  must  be  strictly  complied  with:    Knighton  v. 
Smith,  1  Or.  276. 
A  statute  directing  execution  sale  of  realty,  consisting  of 
several  known  parcels,  to  be  in  separate  parcels,  is  direc- 
tory: Griswold  v.  Stoughton,  2  Or.  Gl;  Dolph  v.  Barney, 
5  Or.  192;  Bank  of  British  Columbia  v.  Page,  7  Or.  454. 
Where  a  statute  gives  power  to  public  officers  to  do  an 
act  for  the  public  benefit,  the  power  is  a  duty  though 
the  statute  is  permissive  in  its  terms:  Springfield  Mill- 
ing Co.  V.  Lane  Co.,  5  Or.  265;  Rankin  v.  Buckman,  9 
Or.  253. 
"  May,"  used  in  statute  prescribing  duty  of  officer,  ordi- 
narily implies  that  the  duty  is  directory,  but  when  the 
rights  of  the  public  or  of  third  persons  are  afiected, 
"may"  means  "shall":  Smith  v.  King,  14  Or.  10. 
Clause  in  Civil  Practice  Act  of  1854,  that  court  "  may  " 
dismiss  case  on  trial  if  plaintiff  fails  to  prove  a  case  to 
go  to  the  jury,  is  not  permissive,  but  is  mandatory,  and 
court  must  dismiss:  Tolmie  v.  Dean,  1  W.  T.  46. 
7,   Repeal. 

A  statute  must  have  repealing  clause,  or  negative  words, 
to  repeal,  unless  repugnant:  McLaughlin  v.  Hoover,  1 
Or.  31. 
Repeal  of  lien  law  by  new  law  after  lien  acquired  does  not 
divest  lien:  Steamer  Gazelle  v.  Lake,  1  Or.  119;  Wil- 
lamette Falls  etc.  Co.  v.  Riley,  1  Or.  183. 
Repeal  of  statute  of  limitations,  after  the  statute  has  be- 
come a  perfect  bar  to  a  cause  of  action,  does  not  destroy 
the  bar:  Baldro  v.  Tolmie,  1  Or.  176. 
Charter  of  Salem  giving  city  power  to  license  sale  of  liquor 
does  not  operate  to  repeal  state  law  upon  the  subject: 
Palmer  v.  State,  2  Or.  66. 


534  Statutes. 

Statutes  (continued). 

Statutes  not  expressly  repealing  others  are  to  be  construed 
if  possible  to  suffer  both  to  be  in  force:  Id.;  State  v. 
Benjamin.  2  Or.  125. 

To  repeal  by  implication,  subsequent  statute  must  be  on 
same  subject,  and  intended  as  substitute:  State  v.  Ben- 
jamin, 2  Or.  125. 

Repeal  by  implication  does  not  conflict  with  article  4,  sec- 
tion 22,  of  state  constitution:  Delay  v.  Chapman,  2  Or. 
242;  Fleischner  v.  Chadwick,  5  Or.  152;  Grant  v.  Sels, 
5  Or.  243;  Stingle  v.  Nevel,  9  Or.  62. 

Not  necessary  to  set  forth  entire  act  or  section,  as  in  the 
case  of  amendment,  when  the  legislature  seeks  to  re- 
peal or  limit  the  same  to  particular  counties:  Bird  v. 
Wasco  County,  3  Or.  282. 

Statute  repealing  remedy  does  not  affect  pending  actions 
or  suits:  Newsom  v.  Greenwood,  4  Or.  119. 

Subsequent  statute  repugnant  to  prior  one  operates  as  re- 
peal so  far  as  they  conflict:  Fleischner  v.  Chadwick,  5 
Or.  152;  Hurst  v.  Hawn,  5  Or.  275;  Davidson  v.  Car- 
son, 1  W.  T.  307. 

Subsequent  statute,  not  attempting  to  revise  or  amend, 
not  unconstitutional  because  on  same  subject:  Id. 

Such  statute  evidently  intended  as  a  substitute  operates 
as  a  repeal  of  former  without  express  words:  Stingle  v. 
Nevel,  9  Or.  62. 

General  statute  will  not  repeal  a  previous  particular  stat- 
ute simply  because  it  contains  inconsistent  provisions: 
State  V.  Sturgess,  9  Or.  537;  S.  C,  10  Or.  58. 

Repeal  of  the  sections  of  an  act  printed  with  the  Miscel- 
laneous Laws  in  the  compilation  of  1872  repeals  the 
penalty  clause  of  the  act  collocated  in  the  Criminal 
Code  by  the  compilers:  State  v.  Gaunt,  13  Or.  115. 

Repeal  of  an  act  repeals  the  penalty,  and  such  penalty 
cannot  be  made  to  apply  to  the  violation  of  a  subse- 
quent law  on  the  subject,  unless  expressly  or  by  impli- 
cation provided:  Id. 

Pending  prosecutions  fall  with  the  repeal  of  criminal 
statutes:  Leschi  v.  Territory,  1  W.  T.  13. 

Special  act  does  not  repeal  general  statute  nor  a  general 
repeal  a  special,  except  by  express  words,  or  unless  di- 
rectly in  conflict:  Corbett  v.  Territory,  1  W.  T.  431; 
Cascade  R.  R.  Co.  v.  Sohns,  1  W.  T.  557. 


Statutes,  535 

Statutes  (continued). 

8.  Amendment. 

An  act  repealing  certain  titles  of  the  General  Laws,  and 
substituting  a  new  title  published  at  length,  valid:  No- 
land  V.  Costello,  2  Or.  59. 

The  act  revised  or  amended  need  not  be  set  out  in  the  re- 
vising or  amending  act:  Portland  v.  Stock,  2  Or.  G9. 

But  must  be  set  forth  and  published  in  full  as  amended 

therein:  Id.;  Dolan  v.  Barnard,  5  Or.  390. 
"  An  act  which  does  not  revise  a  previous  act,  but  simply 
amends  a  section,  need  only  set  forth  amended  section: 
Delay  v.  Chapman,  2  Or.  242. 

Portions  of  old  law  copied  into  new,  without  change,  are 
not  re-enacted:  Stingle  v.  Nevel,  9  Or.  62. 

Amendment  to  charter  of  Portland  adding  sections  con- 
ferring certain  powers  regarding  water  supply  is  not  an 
amendment  of  a  specific  section  of  the  charter  requir- 
ing all  contracts  to  be  authorized  by  ordinance:  David 
V.  Portland  Water  Co.,  14  Or.  98. 

Adding  sections  to  a  charter,  conferring  new  powers,  but 
not  altering  existing  provisions,  is  not  an  amendment 
or  revision  within  article  4,  section  22,  of  the  constitu- 
tion: Id.;  Sheridan  v.  Salem,  14  Or.  328. 

Act  providing  for  liquor  license  in  cities  and  towns  as 
well  as  in  counties,  held  in  violation  of  constitution  as 
amendatory  of  municipal  charters  without  setting 
forth  the  act  so  amended:  State  v.  Wright,  14  Or.  365. 

9.  Rights  and  Remedies. 

After  repeal  of  law  under  which  a  lien  was  acquired,  pro- 
ceedings to  enforce  should  conform  to  new  law :  Steamer 
Gazelle  v.  Lake,  1  Or.  119;  Willamette  Falls  etc.  Co.  v. 
Riley,  1  Or.  183. 

AJaw  passed  after  the  death  of  an  intestate,  but  before 
distribution  of  his  estate,  controls  such  distribution: 
Armstrong  v.  Armstrong,  1  Or.  207. 

Repeal  of  statute  giving  mere  remedy  does  not  impair 
existing  rights:  Young  v.  Territory,  1  Or.  214, 

Interest  is  recoverable  under  the  old  law  to  date  of  pas- 
•sage  of  the  new,  and  thereafter  under  the  new  law: 
Stark  V.  Olney,  3  Or.  88, 

Foreign  statute  relied  upon  must  be  pleaded;  it  is  not 
presumed  that  the  law  of  another  state  is  like  our  own: 
Balfour  v,  Davis,  14  Or,  47. 


536  Statutes. 

Statutes  (continued). 

When  a  law  regulating  proceedings  in  suits  is  amended, 
proceedings  had  in  pending  suits  under  the  old  law  are 
valid,  and  those  had  after  the  new  law  takes  effect 
should  conform  thereto:  Marks  &  Co.  v.  Crow,  14  Or. 
382;  Garrison  v.  Cheeney,  1  W.  T.  489. 

Pending  prosecutions  fall  with  repeal  of  criminal  stat- 
utes: Leschi  v.  Territory,  1  W.  T.  13. 

When  a  penal  statute  is  repealed  without  a  saving  pro- 
vision, judgment   rendered  under  it  must  be  reversed 
upon  writ  of  error:  Corbett  v.  Territory,  1  W.  T.  431. 
Summons.     See  Practice. 

1.  Form. 

2.  Service  and  Return. 

3.  Publication. 

1.  Form. 

In  mechanic's  lien  case,  notice  that  "the  plaintiff  will 
take  judgment  for  a  sum  specified  therein  "  is  sufficient 
in  summons:  Willamette  Falls  etc.  Co.  v.  Riley,  1  Or. 
183. 

Judgment  in  default  on  summons  to  appear  "  forthwith  " 
is  wholly  void:  Hunsaker  v.  Coffin,  2  Or.  107. 

Summons  is  not  a  process  within  section  1166  of  the 
Civil  Code  (sec.  1198,  Hill's  A.  L.),  and  need  not  run 
in  the  name  of  the  state:  Bailey  v.  Williams,  6  Or.  71. 

2.  Sep.vice  and  Return. 

Return  of  service  on  a  corporation  must  show  that  the 

person  served  was  the  proper  officer  of  the  corporation, 

capable  of  being  served  under  the  statute:  Willamette 

Falls  etc.  Co.  v.  Williams,  1  Or.  112. 
Allegations  of  the  complaint  showing  the  person  served 

was  such  oflicer  cannot  cure  defect:  Willamette  Falls 

etc.  Co.  V.  Clark,  1  Or.  113. 
Service  by  deputy  sheriff  in  his  own  name  is  insufficient: 

Dennison  v.  Story,  1  Or.  272. 
In  divorce  suit,  under  statute,  ten  days'  service  sufficient 

when  within  the  state:  Rochester  v.  Rochester,  1  Or. 

307. 
Service  of  the  complaint  and  notice  before  filing  the  same 

is  good  service  under  statute:  Keith  v.  Quinney,  1  Or. 

364. 
"  Residing  with  the  family  "  in  return  is  sufficient,  and 


Summons.  537 

Summons  (continued). 

equivalent  to  "of  the  family":  Garland  v.  Heineborg, 
2  Or.  75. 
When  it  appears  in  the  return  that  service  was  made  in 
Douglas  County,  sheriff  making  the  return  is  presuiiu-d 
sheriff  of  that  county:  Id.;  and  see  Marooney  v.  Mc- 
Kay, 3  Or.  372. 
Not  good  service  on  man  and  wife,  if  but  one  copy  of  sum- 
mons and  complaint  was  delivered:  lleatherly  v.  Ilad- 
ley,  2  Or.  26i);  Hass  v.  Sedlak,  9  Or.  462. 
Service,  by  leaving  at  dwelling,  must   strictly  comply 

with  the  statute:  Id.;  Trullenger  v.  Todd,  5  Or.  30. 
Service  must  have  been  intended  as  such,  and  defendant 

must  know  that  service  was  intended:  Id. 
Service  by  city  marshal  of  summons  in  civil  case  in  city 
recorder's  court,  outside  of  the  city,  is  void:  Craig  v. 
Hosier,  2  Or.  323. 
Where  the  precinct  and  county  are  mentioned  in  the  sum- 
mons, the  return  signed  '*  constable  of  Couch  precinct " 
is  sufficient,  without  naming  the  county:  Marooney  v, 
McKay,  3  Or.  372. 
Copy  of  complaint  certified  to  by  justice  is  sufficiently 
certified  to  authorize  its  service  with  the  summons:  Id. 
Admission  of  service  must  state  the  time  and  place  of  ser- 
vice: Heatherly  v.  Hadley  and  Owen,  4  Or.  1. 
Who  certified  the  copies  served  must  be  stated  in  the  re- 
turn: Id. 
Proof  of  service  must  be  made  in  the  court  where  sum- 
mons is  returnable:  Id. 
Recital  in  decree  of  due  service  will  not  aid  the  return: 

Id. 
Where  summons  served  contained  name  of  wrong  court, 
jydgment  in  default  was  void:  Smith  v.  Ellendale  Mill 
Co.,  4  Or.  70. 
Return  nmst  show  that  defendant  was  not  found,  before 
summons  was  served  by  leaving  a  copy  at  his  dwelling: 
Trullenger  v.  Todd,  5  Or.  3G;  Hass  v.  Sedlak,  9  Or.  462. 
On  collateral   attack,  irregular  return   not  aflirmatively 
showing  want   of  jurisdiction  is  sufficient:    Strong  v. 
Barnhart,  6  Or.  93. 
After  rendering  judgment  void  for  defect  in  service,  juatice 
may  still  issue  alias  summons  and  proceed  to  judgment: 
Kuapp  V.  King,  6  Or.  243. 


538  Summons. 

Summons  (continued). 

Where,  in  equity  suit,  service  of  summons  is  made  on 
several  and  copy  of  complaint  on  one  of  the  defend- 
ants, and  the  return  does  not  show  that  the  designation 
was  indorsed  on  complaint  by  plaintiff,  on  collateral  at- 
tack the  service  is  not  void:  Ankeny  v.  Blackiston,  7 
Or.  407. 

Service  on  wife  alone,  in  foreclosure  of  wife's  mortgage, 
gives  no  jurisdiction:  Hass  v.  Sedlak,  9  Or.  462, 

Amendment  of  return  by  sheriff  cannot  affect  previously 
vested  rights  in  a  purchaser  under  the  decree:  Id. 

Service  on  agent  of  corporation  is  substituted  service,  and 
must  show  the  facts  conferring  jurisdiction:  Caro  Bros. 
V.  0.  &  C.  R.  R.  Co.,  10  Or.  510. 

Summons  may  be  served  by  constable  in  any  precinct  in 
his  county:  Taylor  v.  Jenkins,  11  Or.  274. 

Justice  has  jurisdiction,  though  summons  is  served  out  of 
his  precinct:   Id. 

Service  by  a  "  deputy  constable,"  the  record  not  showing 
the  appointment  of  any  such,  is  void:  Prickett  v.  Cleek, 
13  Or.  415. 

Sheriff  may  be  compelled  to  perfect  a  defective  return,  but 
court  has  no  power  to  compel  him  to  alter  a  return  reg- 
ular on  its  face:  Washington  Mill  Co.  v.  Kinnear,  1 
W.  T.  99. 

If  sheriff  make  false  return,  the  party  injured  thereby  has 
his  action  against  him  for  damages:  Id. 

In  case  of  return  regular  on  its  face,  claimed  to  be  false, 
the  court  has  power  to  stay  the  proceedings,  on  a  proper 
showing,  and  to  prevent  surprise  or  injustice:  Id. 

Statute  of  1854,  allowing  coroners  in  certain  cases  to 
serve  summons,  is  still  in  force:  Rodolph  v.  Mayer,  1 
W.  T.  133. 

Record  showing  service  by  coroner,  court  presumes  sheriff 
was  under  such  disabilities  within  the  statute  as  to  per- 
mit coroner  to  act  in  his  stead:  Id. 
3.   Publication. 

Fact  that  affidavit  for,  was  made  on  information  and 
belief  onl}--,  will  be  considered  on  motion  to  open  de- 
fault: Smith  V.  Smith,  3  Or.  363. 

In  construing  order  for  publication,  affidavit  and  com- 
plaint will  be  considered:  Knapp  v.  King,  6  Or.  243. 


Summons.  539 

Summons  (continued). 

Recitals  in  decree  of  due  eervice  by  publication,  where  the 
record  shows  that  sufficient  time  since  the  filing  of  the 
complaint  had  not  elapsed,  give    rise  to  no  presump- 
tion of  jurisdiction:  Northcut  v.  Lemery,  8  Or.  31G. 
Strict  compliance  with  the  statute  necessary,  and  record 
must  allirmativcly  show:  Id.;  Odell  v.  Campbell,  9  Or. 
298;  Victor  v.  Davis,  11  Or.  447. 
On  collateral  attack,  whether  defective  affidavit  can  be 
taken  advantage  of,  quaere:  Odell  v.  Campbell,  9  Or. 
298. 
On  failure  to  provide  in  order  for  publication  for  mailing 
copy  of  summons,  and  no  excuse  being  set  forth  tlierein, 
the  judgment  is  void:  Id. 
Date  of  the  order  for  publication  must  appear  in  the  pub- 
lished summons:  Id. 
Affidavit    of    printer    proving    publication    should    not 
merely  by  recital  allege  that  he  is  such  person,  but  that 
fact,  as  well  as  the  publication,  must  be  sworn  to:  Id. 
Recitals  in  decree  of  due  publication,  where  not  affirma- 
tively sustained  by  the  record,  avail  not:  Id. 
Quaere,  whether  editor  is  competent  to  prove  publication 

under  the  statute:  Id. 
Publication  not  having  been  for  the  time  specified  in  the 
order,  and  copy  not  mailed  as  by  the  order  required, 
no  jurisdiction  was  gained,  and  default  entered  is  void: 
Montgomery  v.  Manning,  1  W.  T.  434. 
Under  Code  of  1871,  service  of  process  in  equity  cases 
might  be  had  by  publication,  under  the  provisions  of 
the  Code  applicable  to  law  cases,  where  not  inconsistent 
with  the  federal  laws  and  rules  of  the  United   States 
Supreme  Court:  Garrison  v.  Cheeney,  1  W.  T.  489. 
Rules  of  United  States  Supreme  Court  forbade  service  of 
personal  process  in  a  chancery  suit  by  publication,  and 
therefore  such  service  could  not  be  had  in  equity  cases 
under  the  Code  of  1871:  Id. 
The  requirements  of  the  act  of  Congress  of  June,  1872, 
respecting  service  of  personal  process,  pointed  out:  Id. 
Record  in  this  case  fails  to  show  compliance  with  the  act 
of  Congress,  which  is  essentially  diilerent  from  the  pro- 
visions of  the  territorial  Code:  Id. 
Record  showing  service  by  publication  must  also  show 


540  Summons. 

Summons  (continued). 

affirmatively  that  defendant  was  duly  cited  to  appear, 
as  required  by  statute,  and  has  been  afforded  an  oppor- 
tunity to  be  heard:  Id. 

The  act  of  Congress  of  June,  1872,  not  having  specified 
how  proof  of  service  by  publication  should  be  made, 
the  court  decides  it  proper  to  make  the  showing  by  affi- 
davit: Id. 

Master  in  chancery  cannot  administer  oaths  in  such  cases: 
Id. 
Sunday.     See  Liquor  Laws. 

Note  made  on  Sunday  is  void  under  the  statute:  Smith 
V.  Case,  2  Or.  190. 

City  which  has  power  under  charter  to  enact  ordinances 

"  to  secure  the  peace  of  the  city  "  does  not  thereby  have 

authority  to  pass  an  ordinance  requiring  the  closing  of 

stores  on  Sunday:  Corvallis  v.  Carlile,  10  Or.  139. 

Supreme  Court.     See   Appeal   and   Error-,    Constitutional 

Law;  Jurisdiction;  Mandamus;  Rules  of  Court. 
Suretyship.     See  Appeal  and  Error. 

After  judgment,  surety  cannot  be  heard  to  object  that 
appeal  bond  is  not  regular:  Cain  v.  Harden,  1  Or.  360; 
State  V.  Hays,  2  Or.  314. 

Surety  on  bail  bond  not  exonerated  by  continuance  of 
cause  to  subsequent  term:  Waldron  v.  Harrison,  2  Or. 
87. 

The  sureties  of  an  executor  not  liable  until  executor  is 
adjudged  in  default  in  Probate  Court:  Hamlin  v.  I-Cin- 
ney,  2  Or.  91;  Adams  v.  Petrain,  11  Or.  304. 

Surety  on  bail  bond  cannot  object  to  slight  irregularities 
in  the  bond  when  sued  thereon:  State  v.  Hays,  2  Or. 
314. 

Sufficiency  of  sureties  on  attachment  cannot  be  inquired 
of  on  habeas  corpus:  Norman  v.  Zieber,  3  Or.  197. 

Surrender  of  principal  in  bond  given  on  civil  arrest  does 
not  release  sureties  where  bond  is  conditioned  to  pay 
the  judgment,  though  such  bond  is  not  authorized  by 
statute:  Paddock  v.  Hume,  G  Or.  82. 

Forbearance  or  neglect  by  creditor  to  sell  the  property 
pledged  will  release  the  surety  when  the  contract  re- 
quires diligence  in  the  sale  of  the  property  so  pledged: 
Walker  v.  Goldsmith,  7  Or.  161. 


Suretyship.  541 

Suretyship  (continued). 

Judgment  against  principal  is  no  bar  to  action  against 
principal  and  surety  on  another  note  given  as  collateral 
security:  McCullough  v.  Hell  man,  8  Or.  191. 

Extension  to  principal  without  notice  to  surety  "until 
after  harvest"  does  not  discharge  surety,  and  is  void 
for  indefiniteness:  Findley  v.  Hill,  8  Or.  247. 

Where  there  is  a  request  by  the  surety  to  the  creditor, 
when  the  debt  is  due,  to  sue  the  principal,  and  the 
creditor  fails  to  do  so,  this  does  not  discharge  the  surety, 
though  the  creditor  subsequently  becomes  insolvent:  Id. 

Married  woman  mortgaging  her  separate  property  for  her 
husband's  debt  is  a  surety,  and  the  property  will  be 
discharged  by  anything  that  will  discharge  the  prin- 
cipal: Gray  v.  Holland,  9  Or.  512. 

Mere  forbearance  or  delay  of  the  creditor  toward  the  prin- 
cipal will  not  discharge  the  surety:  Id. 

Relinquishment  by  creditor  of  collateral  security  exon- 
erates accommodation  surety:  Brown  &  Co.  v.  Rathburn, 
10  Or.  158. 

Such  defense  is  available  in  an  action  at  law  by  the  credi- 
tor, or  his  assignee  with  notice  of  the  facts:  Id. 

Satisfaction  of  judgment  against  surety  operates  as  satis- 
faction of  a  separate  judgn)cnt  against  the  principal: 
Cox  V.  Smith  and  Forward,  10  Or.  418. 

This,  though  the  judgment  satisfied  is  smaller  than  the 
judgment  against  the  principal,  and  though  the  credi- 
tor, in  entering  satisfaction  of  the  former,  expressly 
reserves  "  all  rights  "  against  the  principal  on  the  judg- 
ment against  him:  Id. 

Surety  on  one  of  several  debts  secured  by  a  mortgage 
cannot  compel  mortgagee  on  foreclosure  to  apply  i)ro- 
ceeds  yro  rata  on  the  debts:  Wilson  v.  Allen  and  Lewis, 

--11  Or.  154. 

Surety  on  note  may,  as  between  himself  and  his  principal, 
show  by  parol  that  he  is  such  surety:  Baker  and  Smith 
V.  Eghn,  11  Or.  333;  Harmon  v.  Hale,  1  W.  T.  422. 

Right  of  contribution  against  co-surety  for  costs  and  ex- 
penses in  defending  suit  on  the  debt:  Van  Winkle  v. 
Johnson,  11  Or.  4G9. 

Obligation  of  surety  to  contribute  does  not  depend  upon 
whether  he  wns  served  with  summons  or  not  in  the 
suit  on  the  original  debt:  Id. 


542  Suretyship. 

Suretyship  (continued). 

Surety  on  replevin  bond  cannot  object  to  irregularity  in 
proceedings  where  not  jurisdictional,  and  is  liable  not- 
withstanding: Carlon  v.  Dixon,  12  Or.  144. 

In  a  foreclosure  suit  against  defendants  jointly  liable,  a 
controversy  between  them  as  to  which  is  principal  and 
which  surety  cannot  be  determined:  Hovenden  v. 
Knott,  12  Or.  267. 

What  judgment  on  appeal  should  be  rendered  against 
sureties  when  a  counter-undertaking  has  been  given: 
Ah  Lep  v.  Gong  Choy,  13  Or.  429. 

Sureties  on  a  replevin  bond  are  liable  for  costs,  and  for 
interest  by  way  of  damages  for  the  breach,  when  judg- 
ment is  against  the  plaintiff,  limited,  however,  to  the 
amount  of  the  penalty  in  the  bond:  Carlon  v.  Dixon, 
14  Or.  293. 

In  an  action  on  a  bail  bond,  the  journal  of  the  court  is 
evidence  against  the  sureties,  to  prove  the  default  of 
the  principal:  Clifford  v.  Marston,  14  Or.  426. 

The  leaning  of  the  law  being  in  favor  of  sureties,  their 
contracts  are  strictly  construed:  Walla  Walla  Co.  v. 
Ping,  1  W.  T.  339. 

When  the  penal  sum  in  an  official  bond  has  not  been  in- 
serted until  after  it  has  been  signed  by  the  sureties  and 
passed  out  of  their  control,  they  are  not  bound:  Id. 

They  are  not  estopped,  though  such  bond  was  accepted 
without  knowledge  of  its  alteration:  Id. 

Extrinsic  evidence  is  admissible  on  the  part  of  one  of  two 
signers  of  a  note,  to  show  that  he  signed  as  surety:  Har- 
mon V.  Hale,  1  W.  T.  422. 

Such  showing  may  be  made  in  an  action  at  law:  Id. 

Forbearance  to  sue  principal,  after  request  in  writing  by 
the  surety,  as  provided  by  statute,  discharges  surety: 
Id. 

Verbal  request  by  the  surety  is  not  sufficient  in  such  case: 
Id. 

Fraudulent  conduct  on  the  part  of  the  payee  that  mis- 
leads the  surety,  and  prevents  his  obtaining  indemnity, 
will  discharge  the  surety:  Id. 
Surgeons.     See  Physicians  and  Surgeons. 
Surveys.     See  Boundaries;  Deeds;  Public  Lands. 
Surveyor-general.     See  Public  Lands. 


Taxation,  543 

Taxation.     See  Assessors;  Municipal  Corporations;  Scbools. 

1.  Generally. 

2.  Assessments. 

3.  Equalization. 

4.  Sales;  Certificates  and  Deeds. 

5.  Redemption. 
1.   Generally. 

A  county  cannot  charge  a  percentage  for  collecting  state 
taxes:  Commissioners  v.  State,  1  Or.  358. 

Rights  and  powers  of  a  state  over  domestic  taxation  un- 
der the  United  States  constitution:  Whiteaker  v.  Haley, 
2  Or.  128. 

State  may  require  taxes  to  be  paid  in  coin,  and  such  is 
the  law  in  Oregon:  Id. 

Article  1,  section  32,  state  constitution,  providing  that 
taxation  must  be  uniform,  applies  to  taxation  to  de- 
fray general  expenses  only:  King  v.  Portland,  2  Or. 
146. 

Uniformity  is  secured  when  taxes  are  equal  and  uniform 
throughout  the  taxing  district:  East  Portland  v.  JMult- 
nomah  Co.,  6  Or.  62;  Crawford  v.  Linn  Co.,  11  Or.  482. 

Article  9,  section  6,  state  constitution,  does  not  require  a 
special  state  tax  to  pay  deficiencies,  when  the  existing 
tax  is  sufficient  therefor  as  well  as  for  current  expenses: 
Burch  V.  Earhart,  7  Or.  58. 

It  is  for  the  legislature  to  determine  the  sufficiency  of  the 
existing  tax  therefor:  Id. 

Sheriff  and  tax  collector  are  not  distinct  offices;  sheriff 
is  not  entitled  to  additional  compensation  as  tax  col- 
lector: Lane  v.  Coos  Co.,  10  Or.  123. 

The  statute  requiring  the  sheriff  to  collect  the  taxes,  and 
to  file  an  additional  bond  for  the  faithful  performance 
of  such  duties,  does  not  create  a  new  office,  but  simply 
imposes  new  duties  upon  the  sheriff:  Id. 

Tax-payer  is  entitled  to  sue  in  equity  to  prevent  illegal 
disposition  of  county  funds:  Carman  v.  Woodruff,  10 
Or.  133;  White  v.  Commissioners,  13  Or.  317. 

State  may  tax  mortgages  where  recorded,  irrespective  of 
.residence  of  owner:  Mumford  v.  Sewall,  11  Or.  67. 

Law  taxing  mortgages  of  non-residents  docs  not  impair 
obligation  of  contracts:  Id. 

Semble,  that  such  a  law  is  not  a  bill  for  raising  revenue: 
Id. 


544  Taxation. 

Taxation  (continued). 

Injunction  will  be  granted  to  restrain  city  from  unlaw- 
fully increasing  valuations  on  assessment  roll:  Dalton 
V.  East  Portland,  11  Or.  426. 

Mortgage  tax  law  does  not  provide  for  unequal  taxation, 
and  is  not  a  special  law:  Crawford  v.  Linn  County,  11 
Or.  482. 

The  power  of  the  legislature  over  taxation  is  limited  only 
by  the  conditions  that  it  shall  be  equal  and  uniform, 
and  shall  extend  alike  to  all  property  except  that  ex- 
empt by  the  constitution:  Id. 

Power  of  the  legislature  over  taxation  cannot  be  re- 
strained by  the  courts  on  principles  of  policy:  Id. 

Legislature  has  power  to  fix  the  situs  of  personal  property 
for  tax  purposes:   Id. 

Mortgage  tax  law  does  not  exempt  mortgages  on  realty 
situate  in  more  than  one  county:   Id. 

Collection  of  a  tax  will  not  be  enjoined  where  part  is  ad- 
mitted to  be  legal,  and  plaintiff  has  not  paid  or  ten- 
dered that  part:  Brown  v.  School  District  No.  1,  12  Or. 
345. 

One  compelled  to  pay  an  illegal  tax  may  pay  under  pro- 
test, and  recover  same  back  by  proper  proceeding:  Id. 

Power  of  city  to  tax  abutting  property  for  street  improve- 
ments must  be  strictly  construed:  Dowell  V.Portland, 
13  Or.  248;  Hawthorne  v.  East  Portland,  13  Or.  271. 

It  is  the  duty  of  the  legislature  to  levy  no  more  state  tax 
than  necessary;  but  its  determination  of  the  rate  is 
conclusive:  State  v.  Multnomah  County,  13  Or.  287. 

County  cannot  deduct  from  its  quota  of  state  tax  amounts 
uncollected  because  of  its  assessment  roll  containing 
double  assessments:  Id. 

State  is  not  entitled  to  interest  upon  recovery  from  a 
county  of  a  balance  of  unpaid  taxes:  Id. 

Legislature  has  full  power  to  apportion  counties,  and  their 
common  burdens:  Morrow  County  v.  Hendryx,  14  Or. 
397. 

Taxes  collected  by  Umatilla  County  cannot  be  required 
to  be  paid  over  to  Morrow  County,  newly  created  out  of 
Umatilla  County,  by  inandamvs  against  the  treasurer 
of  the  latter  county:  Id. 

When  two  counties  are  divided,  the  old  county  is  liable 


Taxation.  545 

Taxation  (continued). 

for  state  tax  charged  upon  the  county  at  the  time,  and 
may  be  compelled  to  pay  the  whole  thereof:  Gilliam 
County  V.  Wasco  County,  14  Or.  525. 

Though  the  legal  title  to  lands  is  in  the  United  States, 
the  equitable  title  in  an  occupant  is  subject  to  taxation: 
Pugot  Sound  Agricultural  Co.  v.  Pierce  County,  1  W. 
T.  159. 

Puget  Sound  Agricultural  Company  had  an  interest  in 
lands  in  Washington  Territory,  confirmed  by  treaty  of 
184G,  subject  to  taxation,  though  the  lands  were  not 
yet  surveyed  by  the  government:  Id. 

The  territory,  in  taxing  lands,  does  not  attempt  to  deter- 
mine in  whom  the  title  vests,  but  leaves  such  deter- 
mination to  the  parties  interested:  Id. 

The  taxing  power  is  one  of  the  largest  of  sovereignty,  and. 
will  not  be  presumed  to  have  been  relinquished:  Id. 

A  law  levying  tax  on  "  real  property "  embraces  every 
species  of  title,  whether  inchoate  or  complete:  Id. 
2.   Assessments. 

For  street  improvements,  see  Municipal  Corporations. 

Property  coming  into  city  limits,  after  assessment  is 
made,  cannot  be  assessed  by  city:  Or.  Steam  Nav.  Co. 
V.  Portland,  2  Or.  81. 

But  persons  not  previously  taxed,  who  commence  busi- 
ness after  levy  of  taxes,  selling  goods  not  previously 
assessed  in  the  city,  may  be  assessed:  Id. 

How  assessment  shall  be  made  by  the  assessor:  Or.  Steam 
Nav.  Co.  V.  Wasco  County,  2  Or.  206. 

Authority  of  the  County  Court  over  the  assessment  roIl« 
Id.;  Darragh  v.  Bird,  3  Or.  246. 

When  the  duties  of  assessor  commence:  Rhea  v.  Umatilla. 
County,  2  Or.  298. 

Possession  and  control  of  property  by  executor  are  those 
of  owner  for  purchase  of  taxation:  Johnson  v.  Oregon 
City,  2  Or.  327;  Johnson  v.  City  Council,  3  Or.  13. 

The  situs  of  invisible  and  intangible  personal  property 
taxed  is  with  the  owner:  Id.;  Poppleton  v.  Yamhill 
County,  8  Or.  337. 

Notes,  etc.,  under  control  of  executor  living  in  a  city  are- 
liable  to  assessment  there,  though  deposited  out  of  city: 
Id. 

Or.  Dig.— 35 


546  Taxation. 

Taxation  (continued). 

Situs  of  personalty  is  with  resident,  rather  than  with 
non-resident,  co-executor:  Jolmson  v.  City  Council,  3 
Or.  13. 

Assessment  or  statement  furnished  assessor  is  not  evi- 
dence on  issue  of  value:  Oregon  Cascade  R.  R.  Co.  v. 
Baily,  3  Or.  164. 

Note  payable  at  specified  place  within  the  state  is  indebt- 
edness that  may  be  deducted,  though  the  owner  is  a 
non-resident:  Ankeny  v.  Multnomah  County,  3  Or. 
386. 

Not  so  a  note  in  which  place  of  payment  is  not  desig- 
nated: Ankeny  v.  Multnomah  County,  3  Or.  388. 

Indebtedness  within  the  state  defined;  statute  construed: 
Ankeny  V.  Multnomah  County,  4  Or.  271. 

Indebtedness  may  be  deducted  from  assessments  for 
school  purposes:  Stephens  v.  School  District  No.  21,  6 
Or.  353. 

Deduction  of  indebtedness  does  not  render  the  tax  un- 
equal: Wetmore  v.  Mviltnomah  County,  6  Or.  463. 

Notes  and  mortgages  deposited  with  person  out  of  the 
county  by  resident  owner,  who  has  so  deposited  them 
after  borrowing  money  from  such  person  to  escape  taxa- 
tion, are  taxable  where  owner  resides:  Poppleton  v. 
Yamhill  County,  8  Or.  337. 

Notes  and  mortgages  are  property  subject  to  taxation:  Id. 

Assessment  of  land  by  number  of  acres  and  value,  without 
location  or  description,  is  void:  Holmes  v.  School  Dis- 
trict No.  15,  11  Or.  332. 

East  Portland  charter  held  to  adopt  the  county  assess- 
ment roll  within  the  city  as  the  city  assessment  roll: 
Dalton  v.  East  Portland,  11  Or.  426. 

City  council  cannot  raise  the  assessments  on  such  roll  by 
a  uniform  rate  per  cent:  Id. 

But  semble,  such  action  does  not  vitiate  the  assessment 
to  the  proper  amount:  Id. 

City  charter,  requiring  street  assessment  made  in  the 
name  of  the  owner  or  unknown  owners,  an  assessment 
in  the  name  of  a  stranger  to  the  title  is  void :  Dowell  v. 
Portland,  13  Or.  248. 

City  has  no  power  to  reassess  or  to  correct  void  assessment 
and  sale:  Id. 


Taxation.  647 

Taxation  (continued). 

Assessraont  in  the  name  of  B.  F.  Dowell,  when  Fannie 

Dowell  is  the  true  owner,  is  void:  Id. 
So,  assessment  to  "J.  C.  Hawthorne,  Est.  of,"  although 
J.  C.  Hawthorne  was  owner,  and  is  dead:  Hawthorne 
V.  East  Portland,  13  Or.  271. 
Effect  of  provision  in  city  charter  that  city  may  take 
from  county  clerk  certificate  of  the  name  of  the  owner 
of  property,  for  purpose  of  assessment:  Id. 
It  is  imperative  upon  the  sheriff  to  remit  taxes  improperly 
assessed,  upon  presentation  to  him  of  affidavit,  and 
verified  list  of  his  taxable  property  by  tax-payer,  show- 
ing the  wrongful  assessment:  Smith  v.  King,  14  Or.  10. 
Sheriff  has  not  authority  to  inquire  into  the  truth  of  the 

showing  made,  but  must  follow  the  statute:  Id. 
Failure  of  assessor  to  assess  other  property  liable  to  taxa- 
tion in  the  county  does  not  release  one  whose  property 
is  duly  assessed  from  payment  of  taxes:  Puget  Sound 
Agricultural  Co.  v.  Pierce  County,  1  W.  T.  159. 
Though  the  only  tax  levied  on  any  lands  in  the  county  is 
upon  the  lands  of  one  owner,  and  other  real  estate  is 
not  taxed,  he  must  pay  his  tax:  Id. 
The  law  provides  for  amending  assessment  rolls  in  such 
case,  and  the  remedy,  if  assessor  fails  to  do  his  duty  in 
this  respect,  is  to  move  to  have  the  roll  amended:  Id. 
Under  the  acts  of  Congress,  discrimination  is  forbidden  in 
assessment  of  different  kinds  of  property,  and  all  assess- 
ments must  be  according  to  valuation:  Seattle  v.  Yesler, 
1  W.  T.  571. 
Legislative  grant  of  power  to  city  of  Seattle  is  within  the 

restriction  of  that  act:  Id. 
Towns  may  make  taxes  for  local  improvements  a  lien  on 
the  property  benefited,  to  the  extent  of  the  valuation, 
-^3ut  cannot  make  it  a  personal  charge  against  the  owner: 

Id. 
The  word  "assessment"  in  the  Organic  Act  is  used  in  its 
common  and  general  sense:  Id. 
3.    Equalization. 

Assessor  and  clerk  alone  as  a  board  of  equalization  may 
revise  the  assessment  made,  and  in  what  respects: 
Oregon  Steam  Nav.  Co.  v.  Wasco  County,  2  Or.  206; 
Darragh  v.  Bird,  3  Or.  246. 


548  Taxation. 

Taxation  (continued). 

Writ  of  review  lies  from  the  decisions  of  the  board  of  equal- 
ization: Rhea  v.  Umatilla  County,  2  Or.  293;  Popple- 
ton  V.  Yamhill  County,  8  Or.  337. 

County  Court  has  no  power  to  correct  assessment:  Darragh 
V.  Bird,  3  Or.  246. 

Board  has  power  to  raise  assessment,  and  add  property 
not  found  or  included  by  assessor:  Poppleton  v.  Yam- 
hill County,  8  Or.  337. 

May  try  question  of  fraud  in  tax-payer  removing  property 
from  county  to  escape  taxation:  Id. 

City  council  of  East  Portland  has  no  power  to  alter  the 
assessments  on  the  roll,  except  as  a  board  of  equaliza- 
tion: Dalton  V.  East  Portland,  11  Or.  426. 

4.  Sales;  Certificates  and  Deeds. 

The  certificate  of  tax  sale  does  not  convey  legal  title,  but 
is  evidence  of  equitable  title:  Dolph  v.  Barney,  5  Or. 
193. 

Party  claiming  under  a  certificate  must  show  a  strict  com- 
pliance with  statute  in  all  steps:  Id. 

Deed  regular  on  its  face,  ofiered  as  evidence,  together  with 
tax  records  which  show  it  invalid,  proves  no  title:  De 
Lashmutt  v.  Sellwood,  10  Or.  319. 

In  ejectment,  defendant  claiming  under  statute  of  limita- 
tions may  give  in  evidence  a  tax  deed  to  show  color  of 
title  with  possession,  though  the  description  is  defective: 
Smith  V.  Shattuck,  12  Or.  362. 

Power  of  a  municipal  corporation  to  sell  real  property  for 
delinquent  assessment  strictly  construed:  Dowell  v. 
Portland,  13  Or.  248. 

Exercise  of  such  power  is  not  an  adjudication,  or  the  ex- 
ercise of  jurisdictional  power:  Id. 

After  making  void  assessment  and  sale,  city  has  no  power 
to  refund  purchase  money  and  then  reassess  and  sell, 
and  such  sale  will  be  enjoined:  Id. 

Purchaser  at  such  void  sale  buys  at  his  peril,  and  cannot 
recover  his  money:  Id. 

"Minter's  Donation,  township  1  south,  range  2  west,  320 
acres,"  is  a  sufficient  description  in  tax  deed:  Minter  v. 
Durham,  13  Or.  470. 

5.  Hedemption. 

Owner  of  a  part  of  a  tract  of  land  may  redeem  the  whole 


Tenants  in  Common.  649 

Taxation  (continued). 

tract;  and  when  the  whole  premises  were  sold,  it  was 
necessary  for  him  to  redeem  the  whole:  Rich  v.  Palmer, 
6  Or.  339. 

The  complaint  of  one  owning  an  equitable  interest,  who 
has  redeemed,  and  seeks  to  set  aside  a  deed  afterward 
made  by  the  sheriff  to  the  purchaser,  need  not  bet  out 
specifically  the  nature  of  plaintiff's  equitable  title:  Id. 

Holder  of  title  bonds  to  donation  claim,  before  patent, 
has  a  right  to  redeem:  Rich  v.  Palmer,  7  Or.  133. 

No  notice  of  intention  to  redeem  is  necessary:  Id. 

The  sheriff,  and  not  the  holder  of  the  tax  sale  certificate, 
is  the  one  to  whom  the  money  should  be  paid:  Id. 

Redemption  or  payment  of  taxes  by  co-tenant  in  posses- 
sion inures  to  benefit  of  all:  Minter  v.  Durham,  13  Or. 
470. 

And  this,  though  premises  were  sold  to  a  stranger  for 
taxes,  who  afterwards  assigned  certificate  of  sale  to  such 
tenant:  Id. 

Co-tenant  redeeming  and  claiming  to   hold  until  reim- 
bursed may  be  shown  to  have  been  receiving  all  the 
profits  at  the  time:  Id. 
Taxation  of  Costs.     See  Costs  and  Disbursements. 
Tax  Deeds.     See  Taxation. 
Tax  Sales.     See  Taxation. 
Tenants  in  Common. 

A  tenant  may  sue  his  co-tenant  who  sells  or  destroys  com- 
mon goods:  Yamhill  Bridge  Co.  v.  Newby,  1  Or.  173. 

One  tenant  in  common  may  recover  whole  property  from 
stranger  in  ejectment:   Dolph  v.  Barney,  5  Or.  193. 

Possession  of  one  co-tenant  is  not  the  possession  of  all, 
where  the  one  in  possession  claims  the  whole  property 
under  color  of  title:  Farris  v.  Hayes,  9  Or.  81. 

One  owning  an  undivided  half,  mortgaging  his  interest, 
on  partition  takes  his  allotted  portion  subject  to  the 
mortgage  lien:  Board  S.  L.  Com.  v.  Wiley  and  Davis, 
10  Or.  86. 

Corporation  may  be  a  joint  tenant  with  individuals  in  a 
ferry  franchise:  Hackett  v.  Multnomah  R'y  Co.,  12  Or. 

.    124. 

The  right  of  a  co-tenant  to  an  accounting:  Id. 

Co-tenant  in  possession,  claiiuing  to  hold  until  reimbursed 


550  Tenants  in  Common. 

Tenants  in  Common  (continued), 

for  having  redeemed  property  from  tax  sale,  may  be 
shown  to  have  been  at  the  time  receiving  all  the  rents 
and  profits:  Minter  v.  Durham,  13  Or.  470. 

Payment  of  taxes  by  a  co-tenant  in  possession  inures  to  the 
benefit  of  all:  Id. 

And  this,  though  property  was  sold  for  taxes,  and  bid  in 
in  by  a  stranger  who  afterwards  assigned  certificate  of 
tax  sale  to  the  co-tenant  in  possession:  Id. 

Co-tenants  cannot  join  as  plaintiffs  in  ejectment;  but  mis- 
joinder is  waived  by  answering  over:  Id. 

Co-tenants  jointly  contracting  with  a  broker  for  the  sale 
of  their  land  are  properly  joined  as  defendants  in  an 
action  for  breach  of  the  contract:  Fisk  v.  Henarie,  14 
Or.  29. 

In  such  case,  it  is  the  contract,  and  not  their  co-tenancy, 
that  determines  their  joint  or  several  liability :  Id. 
Tender.     See  Contracts;  Costs  and  Disbursements;  Deeds; 
Fees;  Mortgages. 

Vendor  must  tender  deed,  and  vendee  must  tender  price, 
before  action  lies  in  favor  of  either  upon  a  contract  to 
convey  land  on  payment  of  the  purchase  price:  Guthrie 
V.  Thompson,  1  Or.  353. 

Mortgagor  seeking  to  redeem  must  tender  the  debt,  except 
where  suit  is  necessary  to  fix  the  amount:  Atkinson  v. 
Morrissy,  3  Or.  332. 

Defendant  refusing  to  accept  money  on  the  ground  that 
plaintiff  had  no  right  to  redeem,  tender  was  unneces- 
sary: Id. 

If  the  tender  is  not  made  before  the  suit  is  commenced,  it 
does  not  carry  costs:  Or.  Central  R.  R.  Co.  v.  Wait,  3 
Or.  428. 

Mere  readiness  to  pay,  without  tender  and  refusal  to  ac- 
cept, is  insufficient:  Smith  v.  Foster,  5  Or.  44;  Powell 
V.  D.  S.  &  G.  R.  R.  R.  Co.,  12  Or.  488. 

Where  the  purchaser  of  property  agrees  to  pay  therefor  on 
a  day  certain,  in  other  property  at  a  certain  valuation, 
tender  on  the  day  is  necessary,  or  vendor  may  consider 
the  contract  rescinded,  and  sue  for  the  equivalent  of 
the  property  in  money:  Shattuck  v.  Smith,  5  Or.  125. 

Ofier  in  writing  to  pay,  if  declined,  is  sufficient  tender 
under  the  Code:  Bartel  v.  Lope,  6  Or.  321. 


Tender.  55I 

Tender  (continued). 

Such  tender  will  discharge  the  Hen  of  a  chattel  mortgage 
if  made  to  the  mortgagee:  Id. 

Vendor  need  not  remove  heavy  machinery  from  his  shop 
to  the  depot  to  constitute  a  tender  thereof,  when  vendee 
is  not  there  with  cars  to  receive  it  and  pay  for  it  as 
agreed:  Smith  Bros.  v.  Wheeler,  7  Or.  49. 

Tender  coupled  with  a  condition,  or  by  a  person  un- 
authorized, may  be  disregarded:  Weill  v.  Clark's 
Estate,  9  Or.  387. 

Tender  in  writing  under  the  Code,  to  be  a  sufficient  tender 
must  be  coupled  with  present  ability  and  readiness  to 
pay:  Ladd  and  Tilton  v.  Mason,  10  Or.  308;  Holladay 
V.  Holladay,  13  Or.  523. 

And  when  suit  is  brought,  money  must  be  paid  into  court: 
Holladay  v.  Holladay,  13  Or.  523. 

Burden  of  proof  of  ability  to  pay  is  on  the  person  claiming 
the  advantage  of  tender:  Ladd  and  Tilton  v.  Mason  10 
Or.  308. 

Mortgagee  in  possession  under  deed  absolute  on  its  face 
must  tender  reconveyance  before  he  can  sue  for  the 
debt:  Wolcott  v.  Madden,  10  Or.  370. 

Tender  and  payment  into  court,  in  an  action  to  condemn 
right  of  way,  is  an  admission  of  damages  to  the  amount 
tendered:  0.  R.  <«^  N.  Co.  v.  Or.  Real  Estate  Co.,  10  Or 
444. 

Tender  and  payment  into  court  only  admits  the  cause  of 
action  to  the  amount  tendered,  and  does  not  preclude 
defense  against  recovery  of  any  greater  sum:  Simpson 
v.  Carson,  11  Or.  3G1. 

Plaintiff  seeking  to  enjoin  collection  of  a  tax,  a  part  of 
which  is  recognized  by  him  as  legal,  must  pry  or  tender 
^  the  amount  admitted,  before  bringing  suit:  Brown  v. 
School  District  No.  1,  12  Or.  345. 

When  covenants  are  dependent  and  concurrent,  the  party 
alleging  the  breach  must  aver  a  tender  of  performance 
on  his  part  at  the  stipulated  time:  Powell  v.  D.  S.  &  G 
R.   R.  R.  Co.,  12   Or.  488;    Hawley,  Dodd,  &   Co    v 
Kenoyer,  1  W.  T.  609. 

Party  cannot  keep  contract  open,  and  long  after  time  has 
passed  make  a  tender  of  a  deed,  and  then  allege  a 
breach  at  the  time  of  tender:  Id. 


652  Tender. 

Tender  (continued). 

Assignor  suing  his  assignees  for  an  accounting  raust 
tender  the  balance  due  the  creditors,  or  he  is  not  en- 
titled to  costs:  Kinney  v.  Heatley,  13  Or.  35. 

Note  payable  at  a  particular  place,  tender  must  be  made 
at  the  time  and  place,  and  the  payee  must  deposit  or 
keep  the  money  intact,  and  pay  it  into  court  when 
sued:  Adams  v.  Rutherford,  13  Or.  78. 

Vendee  of  chattels  on  discovering  breach  of  warranty  of 
title  may  tender  back  the  property,  and  set  up  the 
breach  as  defense  in  action  for  the  purchase  price: 
Baker  and  Hamilton  v.  McAllister,  2  W.  T.  48. 

Under  an  executory  contract  to  purchase  land,  on  failure 
of  vendee  to  pay  as  agreed,  vendor  may  tender  deed 
and  sue  for  the  purchase  price  of  the  land:  Wood  v. 
Mastick,  2  W.  T.  64. 

Vendee  in  possession  of  land  must  tender  reconveyance 
before  he  can  defend  in  action  for  purchase  price  on  the 
ground  of  breach  of  condition  of  sale:  Ken  worthy  v. 
Merritt,  2  W.  T.  155. 
Tenns  of  Court. 

Legislature  may  authorize  district  judge  to  appoint  spe- 
cial term:  O'Kelly  v.  Territory,  1  Or.  51. 

Sittings  of  District  Court  are  terms  within  the  meaning 
of  the  law:  Gird  v.  State,  1  Or.  308. 

Times  of  holding  Circuit  Court  in  third,  fourth,  and  fifth 
districts  not  changed  by  act  of  1870:  Smith  v.  Smith, 
3  Or.  363. 

Term  appointed  by  Supreme  Court  by  order  entered  in 
journal  in  term  time  is  a  regular  term  within  the  mean- 
ing of  statute  on  appeals:  Moore  v.  Packwood,  5  Or. 
325. 

County  Court  may  appoint  special  term  at  which  any 
business  may  be  done:  Kamer  v.  Clatsop  Co.,  6  Or.  238. 

When  statute  provides  for  doing  certain  things  at  next 
ensuing  term,  regular  and  not  special  term  is  meant: 
Tompkins  v.  Clackamas  County,  11  Or,  364. 

Term  having  been  irregularly  appointed,  nunc  pro  tunc 
order  cannot  subsequently  be  made,  correcting  the  de- 
fect, to  the  injury  of  the  rights  of  parties:  Id. 

After  the  close  of  the  next  term  of  the  District  Court,  sub- 
sequent to  the  one  at  .which  a  judgment  was  rendered, 


Timber  and  Logs.  553 

Terms  of  Court  (continued). 

the  court  has  no  power  to  grant  relief  from  such  judg- 
ment: Hancock  v.  Stewart,  1  W.  T.  323. 
Terms  of  Office.     See  Offices  and  Officers. 

County  judge  elected  holds  for  four  years  after  election, 
except  in  case  of  death,  removal,  or  resignation:  State 
V.  Johns,  3  Or.  533. 
The  term  attaches  to  the  person  elected  to  fill  the  same: 

Id. 
One  appointed  to  fill  a  vacancy  holds  until  next  general 

election  only:  Id. 
Term  of  circuit  judge  is  six  years,  but  person  elected 
during  an  unexpired  term  holds,  not  six  years,  but  for 
the  remainder  of  the  term:  State  v.  Ware,  13  Or.  380. 
Legislative  assembly  and  Congress  possess  the  power  of 
lengthening  or  shortening  the  terms  of  officers  elected 
under  the  laws  of  the  territory:  Davidson  v.  Carson,  1 
W.  T.  307. 
Terms  of  officers  elected  at  general  election  of  1869  are  not 
changed  by  act  of  Congress  changing  the  time  for  gen- 
eral election  to  June,  1870:  Id. 
Territorial  Government.     See  Constitutional  Law. 
Territories.     See  Constitutional  Law;  States. 
Testimony  de  Bene  Esse.     See  Evidence. 
Threats. 

Extortion  by;  the  intent,  not  the  effect,  the  gravamen  of 

the  offense;  Latshaw  v.  Territory,  1  Or.  140. 
Evidence  of  threats  by  deceased  in  homicide  case:  State 

V.  Dodson,  4  Or.  64;  State  v.  Powers,  10  Or.  145. 
Relinquishment  of  debt  obtained  from  creditor  of  weak 
mind  by  threats  is  invalid,  whether  creditor  was  sane 
or  not:  Parmentier  v.  Pater,  13  Or.  121. 
'Threats  to  amount  to  duress  need  not  be  such  as  would 
comj^el  a  person  of  ordinary  firmness;  sufficient  if  they 
do  in  fact  compel  the  threatened  person:  Id. 
Timber    and   Logs.      See   Contracts;    Liens;   Water   and 
Watercourses. 
Contract  to  cut  and  deliver  a  quantity  of  logs,  to  be  scaled 
and  received  in  certain  lots,  held  severable:  Tenny  v. 
Mulvaney,  8  Or.  129. 
Evidence  and  instructions  under  contract  to  furnish  logs: 
Id.;  Tenny  v.  Mulvaney,  8  Or.  513;  Tenny  and  McK. 
V.  M.  &  B.,  9  Or.  405. 


554  Timber  and  Logs. 

Timber  and  Logs  (continued). 

Purchaser  of  school  land  from  the  state,  to  which  he  has 
certificate,  but  not  a  deed,  is  owner  of  cord-wood  cut 
thereon  by  him:  Schmidt  v.  Vogt,  8  Or.  344. 

Such  wood  cut  and  piled  on  the  land  does  not  pass  with 
the  land  to  a  purchaser  of  his  claim :   Id. 

Mortgagee  in  possession,  with  authority  to  saw  the  logs 
into  lumber  at  mortgagor's  mill,  and  apply  the  proceeds 
of  sale  thereof,  less  expense,  to  the  mortgage  debt, 
should  be  allowed  the  expense  of  repairing  the  mill: 
Friendly  v.  McCullough,  9  Or.  109. 

Mortgagee's  commissions  and  proceeds  from  sale  as  agreed 
were  allowed  in  absence  of  fraud:  Id. 

Order  to  pay  certain  sum  in  lumber  is  not  a  draft,  and 
the  principles  of  the  law  merchant  do  not  apply :  Hyland 
V.  Blodgett,  9  Or.  166. 

Measure  of  damages  for  breach  of  contract  of  sale  of  stand- 
ing timber  is  the  difference  between  the  contract  and 
present  market  price;  and  the  cost  of  making  road  to 
the  timber  is  not  an  element  of  the  damage:  Mackey 
V.  Olssen,  12  Or.  429. 

Act  of  tlie  legislature,  1879,  providing  a  method  for  the 
scaling  of  logs,  is  not  within  the  inhibition  of  section 
1889,  Revised  Statutes  of  the  United  States:  Crawford 
V.  Cockran,  2  W.  T.  117. 

Agent  who  sells  logs  of  principal,  and  permits  the  pur- 
chasers to  scale  them,  instead  of  employing  the  official 
scaler,  is  guilty  of  negligence,  and  liable  to  the  princi- 
pal for  the  loss  he  suffers  by  an  incorrect  measurement: 
Id. 
Time.     See  Criminal  Law;  Slander  and  Libel. 

If  the  last  day  for  serving  notice  of  appeal  falls  on  Sun- 
day, time  is  computed  to  following  day:  Carothers  v. 
Wheeler,  1  Or.  194. 

Term  in  lease  held  to  run  from  last  day  of  year,  where  the 
day  and  month  was  left  blank:  Huffman  v.  McDaniel, 
1  Or.  259. 

The  word  "  month,"  occurring  in  a  statute,  means  lunar 

month,  as  at  common  law,  unless  otherwise  indicated: 

Hale  V.  Finch,  1  W.  T.  517. 

Titles.     See  Adverse  Possession;  Chattel  Mortgages;  Deeds; 

Ejectment;  Execution^,  and  Proceedings  Supplemental; 


Treaties.  555 

Titles  (continued). 

Fee-tail;  Forcible  Entry  and  Detainer;  Sales;  Statute 
of  Limitations;  Statutes;  Taxation;  Trade-marks. 
Toll-gates.     See  Towns. 

Torts.     See  Admiralty;   Attachments;  Complaints;  Conver- 
sion;  Damages;  Joint  and  Several  Liability;  Parties; 
Pleadings. 
Towns. 

Oral  evidence  is  admissible  to  prove  that  a  place  is  a  town 
within  the  statute  relating   to   toll-gates  near  towns: 
Milarkey  v.  Foster,  6  Or.  378. 
Town  Sites.     See  Public  Lands. 
Trademarks. 

"  Great  I.  X.  L.  Auction  Co.,"  held  not  to  infringe  re- 
corded   trade-mark    "  I.    X.    L.,   General   Merchandise 
Auction  Store":  Lichtenstein  v.  Mellis,  8  Or.  464. 
"The  Northwest  News,"  title  of  a  newspaper,  does  not 
per  se  infringe  on  the  title  of  "The  New  Northwest": 
Duniway  Pub.  Co.  v.  Northwest  Print.  Co.,  11  Or.  322. 
When  injunction  will  issue  to  restrain  infringement:  Id. 
Trade,  Restraint  of.     See  Contracts. 

Transcript.     See  Appeal   and  Error;  Judgments  and  De- 
crees; Justice  of  the  Peace. 
Treasurer  of  State. 

j\Iay  not  pay  warrant,  unless  drawn  on  some  special  fund, 
authorized   by   legislative   appropriation,  except   for  a 
claim  authorized  to  be  paid  out  of  general  fund:  Brown 
V.  Fleischner,  4  Or.  132. 
Duty  to  set  aside  a  fund  out  of  which  to  pay  warrants 
under  centennial  commission  act:  Simon  v.  Brown,  5 
Or.  285. 
Cannot  pay  such  warrants  out  of  general  appropriation 
-act:  Id. 
Treaties. 

Rights  of  British  subjects  in  possession  in  Oregon,  under 
article  3,  treaty  of  1846:  Cowenia  v.  Hannah,  3  Or. 
465;  Puget  Sound  Agricultural  Co.  v.  Pierce  Co.,  1 
W.  T.  159;  Roberts  v.  Lucas,  1  W.  T.  205. 
The  only  title  acquired  during  joint  occupancy,  posses- 
sory: Id. 
Rights  reserved  to  the  Puget  Sound  Agricultural  Co.,  un- 
der section  4  of  said  treaty:  Puget  Sound  Agricultural 


556  Treaties. 

Treaties  (continued). 

Co.  V.  Pierce  Co.,  1  W.  T.  159;  Roberts  v.  Lucas,  1 
W.  T.  205. 

Under  convention  for  joint  occupancy,  pending  settlement 
of  boundary  between  United  States  and  Great  Britain, 
jurisdiction  of  territorial  courts  over  crimes  committed 
on  San  Juan  Island:  Watts  v.  United  States,  1  W.  T. 
289;  Watts  v.  Territory,  1  W.  T.  409. 

Said  convention  was  not  a  treaty  within  the  meaning  of 
the  constitution:  Id. 
Trespass.     See  Animals;  Damages;  Injunction;  Negligence. 

Common  law  rule  of  liability  for  cattle  damage-feasant 
not  applicable  to  Oregon:  Campbell  v.  Bridwell,  5  Or. 
311. 

To  maintain  action  for  damage  by  cattle,  plaintiff  must 
allege  that  he  kept  a  fence  prescribed  by  statute:  Id. 

In  operating  a  flume  built  under  license  across  grantor's 
land,  defendants  in  floating  wood  therein  are  liable 
only  for  actual  injury  to  grantor:  Spear  v.  Cook,  3  Or. 
380. 

Where  equity  will  relieve  by  injunction  against  threat- 
ened trespass:  Weiss  v.  Jackson  County,  9  Or.  470; 
Wattier  v.  Miller,  11  Or.  329;  Smith  v.  Gardner,  12  Or. 
221. 

In  the  absence  of  statute,  a  person  is  not  obliged  to  fence 
against  cattle,  before  he  can  maintain  an  action  for 
damage  by  their  trespass:  French  v.  Cresswell,  13  Or. 
418. 

Statute  requiring  land-owners  to  fence  against  certain 
kinds  of  stock,  in  Umatilla  County,  does  not  apply  to 
sheep,  which  are  not  enumerated:   Id. 

Title  and  possession  of  settler  on  public  land,  who  has 
filed  declaration  under  homestead  or  timber  acts,  is 
sufficient  to  enable  him  to  maintain  action  for  trespass: 
Id. 

Master  liable  for  act  of  his  herder  who  permits  sheep  to 
trespass,  though  done  in  disobedience  to  master's  or- 
ders: Id. 

Injunction  will  be  refused,  and  party  remanded  to  his 
action  at  law,  when,  it  appears  that  the  trespass  has 
already  ceased,  and  damages  are  the  main  object  of  the 
8uit:  Ewing  v.  Rourke,  14  Or.  514. 


Trusts  and  Trustees.  557 

Trespass  (continued). 

Mere  trespasser,  having  had  the  use  of  real  property,  is 
liable  to  him  who  holds  under  color  of  title,  for  the 
value  of  the  use:  Blumberg  v.  McNear  &  Co.,  1  W.  T. 
141. 

One  claiming  to  own  crops  damaged  by  trespassing  cattle 
proves  a  case  sufficient  to  go  to  the  jury,  though  on 
the  trial  in  his  direct  case  it  is  developed  that  part  of 
the    crop   was    owned    by   him  jointly    with   another: 
•     Washburn  v.  Case,  1  W.  T.  253. 
Trial.     See  Jury  and  Jury  Trial;  Practice;  Reference. 
Trover.     See  Conversion. 
Trusts  and  Trustees.     See  Assignments. 

Witness  under  will  may  take  trust  estate  in  which  he  has 
no  beneficial  interest:  Hogan  v.  Wyman,  2  Or.  302. 

Executors,  trustees  of  naked  trust  to  sell  and  convey,  need 
not  qualify  or  report  sale  to  Probate  Court:  Id.;  Brown 
V.  Brown,  7  Or.  285. 

Patentee  of  lands  from  the  United  States  is  held  a  trustee 
for  the  rightful  claimant,  when  the  patent  was  issued 
to  the  wrong  person:  White  v.  Allen,  3  Or.  103. 

Deed  and  confirmatory  deed  of  land  in  trust  for  academy 
construed:  Chapman  v.  Wilbur,  3  Or.  326. 

How  far  assignment  by  trustee  indorsed  on  confirmatory 
deed  is  evidence  of  his  knowledge  of  the  contents  thereof: 
Id. 

Where  confirmatory  deed  alters  the  trust,  what  is  ratifica- 
tion by  the  trustee:  Id. 

When  a  sale  of  the  property  to  raise  a  fund  for  the  trust 
purpose  is  valid:  Id. 

Unincorporated  religious  societies  organized  are  capable 
of  taking  trust  property  for  their  benefit,  and  such  trusts 
will  be  enforced:  Trustees  v.  Adams,  4  Or.  76. 

Trustees  of  such  societies  may  sue  for  the  benefit  of  the 
association:  Id. 

Grantor  of  property  for  a  specific  purpose  may  insist  on 
specific  execution  of  the  trust,  but  diversion  does  not 
operate  as  forfeiture  to  him:  Chapman  v.  Wilbur,  4  Or. 
.362. 

Complaint  by  trustee  of  an  express  trust,  which  shows  on 
its  face  that  plaintiff  is  not  the  real  party  in  interest, 
should  show  for  whose  benefit  he  sues:  Holladay  v. 
Davis,  5  Or.  40. 


558  Trusts  and  Trustees. 

Trusts  and  Trustees  (continued). 

Entry  of  homestead  under  laws  of  the  United  States  in 
trust  for  another  is  illegal,  and  will  not  be  recognized  in 
equity:  Clark  v.  Bayley,  5  Or.  343. 

Partner  taking  ferry  and  ferry  franchise  in  his  own  name, 
bought  with  partnership  property  for  the  firm,  held  a 
trustee  for  the  firm:  Knott  v.  Knott,  6  Or.  142. 

Property  bought  by  husband  with  wife's  money  in  his  own 
name  is  held  by  him  as  her  trustee:  Linnville  v.  Smith, 
6  Or.  202. 

Executors  as  trustees  under  a  will  directing  them  to  pay 
debts  and  hold  the  realty  in  trust  for  certain  purposes 
have  implied  power  to  sell  sufficient  to  pay  the  debts: 
Brown  v.  Brown,  7  Or.  285. 

An  order  or  confirmation  of  such  sale  by  the  Probate  Court 
is  not  necessary:  Id. 

Person  who  has  recovered  possession  of  property  by  eject- 
ment, but  who  is  decreed  in  a  suit  in  equity  to  have  no 
right  to  the  property,  is  held  a  trustee  for  the  real 
owner:  Starr  v.  Stark,  7  Or.  500;  Hill  v.  Cooper,  8  Or. 
254. 

Such  owner  may  recover  the  rents  from  the  trustee  in  the 
suit  in  equity  establishing  the  title:  Id. 

Equity  may  decree  patentee  of  public  lands  a  trustee  for 
one  having  better  equitable  title:  Corpe  v.  Brooks,  8 
Or.  222;  Ward  well  v.  Paige,  9  Or.  517. 

Parol  evidence  is  admissible  to  establish  a  resulting  trust, 
but  not  to  prove  a  conveyance  of  the  interest  of  the 
cestui  que  trust:  Chenoweth  and  Johnson  v.  Lewis,  9  Or. 
150. 

Parol  agreement  to  sell  interest  as  cestui  que  trust  in  land 
is  void:  Id. 

Equity  relieves  from  fraud,  and  in  favor  of  innocent  persons 
without  fault  creates  constructive  trusts:  Shively  v. 
Parker,  9  Or.  500. 

Person  cannot,  in  buying  land,  be  held  trustee  for  a  cor- 
poration not  yet  in  existence:  Kelly  v.  Ruble,  11  Or.  75. 

Purchaser  of  property  of  private  corporation,  in  good  faith, 
for  an  adequate  consideration,  is  not  a  trustee  for  credi- 
tors of  the  coi'poration,  though  buying  with  notice  of  the 
debts:  Branson  v.  Oregon  R'y  Co.,  11  Or.  161. 

Attorney  in  fact,  purchasing  land  from  principal,  a  relar 


Usage.  559 

Trusts  and  Trustees  (continued). 

tive  in  a  distant  state,  and  not  disclosing  a  better  offer 
received  by  liini  for  the  property,  abuses  his  trust,  and 
the  deed  will  be  set  aside:    Savage  v.  Savage,  12  Or 
459. 

Trustees  of  an  insolvent  estate  are  entitled  to  reasonable 
compensation:  Kinney  v.  Heatley,  13  Or.  35. 

But  cannot  appoint  one  of  their  number  to  manage  the 
estate  with  commissions  for  sales  and  purchases:  Id. 

Trustee  holding  stock  as  pledgee,  and  allowing  it  to  be 
sold,  buying  it  in  on  his  own  credit  and  subsequently 
paying  therefor  out  of  the  debtor's  estate,  holds  the 
stock  for   the   debtor:    Holladay  v.  Holladay,  13  Or. 

Where  a  father  takes  a  deed  to  land  in  the  name  of  his 
infant  son,  and  goes  into  possession  and  improves,  his 
possession  is  his  son's  possession:  Lawrence  v.  Lawrence 
14  Or.  77.  ' 

There  is  no  resulting  trust  in  favor  of  the  wife  proved, 
where  husband  took   the  deed  in  his  own  name,  and 
paid  the  purchase-money,  and  for  the  improvements, 
and  all  the  parties  occupied  the  property  as  a  family 
residence,  and  there  was  no  written  agreement:  Id. 
Trustee  purchasing  property  in  his  own  name,  at  the  in- 
stance of  and  for  the  use  of  another,  may  maintain 
action    concerning  it  in    his   own    name:    Hexter   v. 
Schneider,  14  Or.  184. 
Husband  investing  proceeds  of  donation  claim,  owned  by 
himself  and  wife,  in  a  farm,  on  which  subsequently,  for 
twenty  years,  both  reside,  holds  an  undivided  half  in 
trust  for  the  wife:  Springer  v.  Young,  14  Or.  280. 
Failure  of  wife  during  coverture  to  establish  her  rights 
by  suit  is  not  laches:  Id. 
Ultra  Vires.     See  Corporations;  Municipal  Corporations. 
Undertakings.     See  Bonds  and  Undertakings. 
Undue  Influence.    See  Fraud  and  Deceit;  Duress;  Threats. 
Unincorporated  Societies.     See  Voluntary  Associations. 
United  States.     See  Admiralty;  Constitutional  Law;  Crim- 
inal Law;  Public  Lands. 
United  States  Army.     See  Offices  and  Officers. 
Unlawful  Assemblages.     See  Riots. 
UBage.    See  Customs. 


560  University. 

University. 

The  board  of  directors  of  the  State  University  is  a  corpo- 
ration, and  may  be  sued  without  joining  the  state  as  a 
party:  Dunn  v.  State  University,  9  Or.  357. 

University  is  liable-  for  salary  of  military  instructor, 
where  by  its  acts  it  has  ratified  his  employment,  and 
cannot  refuse  to  pay  on  the  ground  that  he  was  not  en- 
gaged by  formal  vote:  Tyler  v.  T.  of  T.  A.  &  P.  U.,  14 
Or.  485. 
Use  and  Occupation.     See  Landlord  and  Tenantj  Mesne 

Profits;  Trespass. 
Uses.     See  Trusts  and  Trustees. 
Usury. 

Answer  alleging  usury  must  be  specific,  and  must  nega- 
tive supposition  of  innocence:  Ga,ston  v.  McLeran,  3 
Or.  389. 

Contract  in  note  for  reasonable  attorneys'  fees  construed 
to  mean  the  costs  allowed  by  the  statute,  rather  than 
usury:  Id. 

Under  act  of  1854,  agreement  to  compound  interest  oftener 
than  once  a  year  cannot  be  enforced,  but  is  not  void  as 
to  principal  and  simple  interest:  Murray  v.  Oliver,  3 
Or.  539. 

Usury  law  of  1862  is  constitutional,  and  contract  in  vio- 
lation will  not  be  enforced:  Chapman  v.  State,  5  Or. 
432;  but  see  Sujette  v.  Wilson,  13  Or.  514.  ' 

Forfeiture  of  the  debt  to  school  fund  carries  mortgage 
security  also:  Id. 

Court  of  equity  has  power,  and  under  statute  must  de- 
clare forfeiture  for  usury:  Id. 

Assignee,  bona  fide  before  maturity,  of  usurious  note  ac- 
quires no  rights:  Id. 

Note  given  for  payment  of  interest  on  interest  already  due 
is  valid:  Hathaway  v.  Meads,  11  Or.  66;  Sujette  v. 
Wilson,  13  Or.  514. 

Usury  as  a  defense  in  equity  must  be  strictly  and  clearly 
proved;  the  defense  is  not  favored:  Poppleton  v.  Nel- 
son, 12  Or.  349. 

District  attorney  has  no  right  to  intervene  in  a  suit  to 
claim  the  debt  for  the  school  fund:  Sujette  v.  Wilson, 
13  Or.  514. 

Usury  can  only  be  declared  upon  a  trial  on  issues  framed 


VaKIANCE.  KQi 

TTsury  (continued), 

in  the  pleadings  as  to  that  question,  and  the  proof  must 

be  clear  and  positive:  Id 
Evidence  reviewed  and  held  not  to  establish  usury:  Hoi- 

laday  v.  Holladay,  13  Or  623 
Allegation  that  a  note  was  in  fact  payable  in  Oregon  but 

was  u,ade  payable  on  the  face  thereof  in  CalifofS  for 

the  purpose  of  evading  the  usury  law  of  Oregon    s  a 

'^ZZ'ltT  "'""'  Tu  f  ™' '"' "  '°^"' '"  «"derstanding- 
tha    f".r"7  '''""  ^'  "*""'=''•  •■•"  understanding 
inttt    Id    '      "*'  °'  ■■"""'  "^  P""'  -"  ■>  -""Pt. 
Vacancy.    See  OlBees  and  OfJSoers 

tunfrienrTaL'""™"'  """^'"^  ^"<'^°-^  «— 
Variance.     See  Nonsuit. 

""TlTir  1-  ""^.tf '"  ^P"''  ^«57,  may  be  admitted 
to  prove  allegation  "heretofore,  to  wit,  about  and  pre- 

ShTrff      T^ul^^'  °f  «^'"''^^-  '857":  Jackson' v. 
fenarff  and  Hill,  1  Or.  246. 

A  conviction  for  giving  cannot  stand  under  indictment 

for  selling  liquor:  Wood  v.  Territory   1  Or  293 
Receipt  for  sixty-five  dollars,  as  evidence  to  pr"ove  an  in- 
dictment  for  forging  a  receipt  for  sixty  dolllrs    isl 
a  fatal  variance:  Shirley  v.  State,  1  Or.  269  ' 

Allegations  of  sums,  names,  dates,  and  the  like  must  be 

proven  as  alleged:  Id. 
Proof  of  selling  any  kind  of  spirituous  liquor  will  support 
indictment  for  selling  particular  kind  of  liquor  a  Wed 
under  a  videlicet:  Frisbie  v.  State,  1  Or  248 
discretionary  with  court  to  disregard  variance;  nothing 
but  abus_e  of  the  discretion  reviewable:  BrownV  Moore! 
A  Ur.  4oo;  Henderson  v.  Morris,  5  Or  24 
If  plamtiff  desires  to  recover  on  contract  different  from 
Crltor^lVv^  ■""^'  ^^*  '--  '°  — -i--  Bants  v. 


mildtn  1,  T''  "'''"''  P"'y  ™™'  h"™  been 

misled  to  his  prejudice:  Hill  v.  Mellon,  3  Or.  542-  Dodd 
V.  Denny,  6  Or.  156;  Roy  v.  Horsley,  6  Or.  382 
When  misled_,^proof  must  be  made  to  the  trial  court,  to 


562  Variance. 

Variance  (continued). 

take  advantage  of  section  94  of  the  Code  (sec.  96,  Hill'8 
A.  L.):  Id. 

On  failure  to  prove  written  lease  for  two  years,  proof  of 
verbal  lease  for  two  years  is  not  admissible  to  establish 
lease  for  one  year,  good  under  statute  of  frauds:  Noyes 
V.  Stauff,  5  Or.  455. 

Indictment  for  larceny  of  the  property  of  A  is  not  sus- 
tained by  proof  of  the  property  of  A  and  B,  as  partners, 
unless  A  had  a  special  ownership  therein:  State  v. 
Wilson,  6  Or.  428. 

Proof  of  statement  sworn  to  by  person  charged  with  per- 
jury, differing  in  the  date  from  the  statement  in  the  in- 
dictment, the  variance  was  held  material:  State  v.  Ah 
Sam,  7  Or.  477. 

Slight  variance  will  not  be  considered  on  appeal;  it  is  pre- 
sumed that  the  pleadings  were  amended  on  the  trial  to 
conform  with  the  proof:  Davidson  v.  0.  &  C.  R.  R.  Co., 
11  Or.  136. 

Time  alleged  in  complaint  for  slander  need  not  be  strictly 
proved:  Quigley  v.  McKee,  12  Or.  22. 

Variance  not  appearing  affirmatively  to  have  worked  in- 
jury is  no  ground  for  reversal:  Tucker  v.  Flouring  Mills 
Co.,  13  Or.  28. 

Complaint  charging  defendant  as  a  common  carrier,  no 

recovery  can  be  had  on  proof  of  liability  as  a  private 

carrier  only:  Honeyman  v.  Or.  etc.  R.  R.  Co.,  13  Or.  352. 

Venditioni  Exponas.     See  Executions,  and   Proceedings 

Supplemental. 
Vendors'  Liens.     See  Liens. 

Vendors  and  Purchasers.     See  Contracts;  Deeds;  Liens; 
Notice;  Sales;  Specific  Performance;  Statute  of  Frauds; 
Tender. 
Venue.     See  Criminal  Law;  Replevin. 

Larceny  may  be  prosecuted  in  the  state  or  county  where 
the  goods  are  taken  by  the  oflfender:  State  v.  Johnson,  2 
Or.  115. 

On  motion  for  change  of  venue  for  convenience  of  witnesses, 
counter-affidavits  may  be  heard:  Lander  v.  Miles,  3 
Or.  35. 

Where  suit  brought  to  determine  adverse  claim  to  real 
property  in  wrong  cpunty,  the  defect  is  cured  by  subse- 


Wagers.  563 

Venue  (continued). 

quent  change  before  answer  by  order  of  court:  Weiss  y. 
Bethel,  8  Or.  522. 
Changing  place  of  trial,  on   account  of  local  prejudice, 
rests  faolel}'  within  the  discretion  of  the  court:  Ward  v. 
Moorey,  1  W.  T.  104;  McAllister  v.  Territory,  1  W.  T. 
360. 
Court  may  of  its  own  motion  examine  the  public  feeling, 
and  properly  make  inquiries  of  the  jurors  touching  the 
same:  Id. 
Actions  for  causes  mentioned  in  section  48,  Practice  Act 
of  1877,  must  be  brought  in  the  county  or  district  in 
which  the  subject  of  the  action  lies:  Wood  v.  Mastick, 
2  W.  T.  64. 
Venue  of  a  crime  in  an  indictment  is  sufficiently  set  out 
though  the  county  is  not  stated,  the  crime  being  alleged 
to  have  been  committed  in  the  city  of  Seattle,  the  court 
taking  judicial  notice  that  Seattle  is  in  King  County: 
Schilling  v.  Territory,  2  W.  T.  283. 
Verdict.     See  Criminal  Law;  Jury  and  Jury  Trial. 
VeriJS.cation.     See  Costs  and  Disbursements;  Pleading. 
Vessels.     See  Admiralty;  Boats  and  Vessels;  Liens. 
View.     See  Jury  and  Jury  Trial. 
Voluntary  Assignments.     See  Assignment  for  Benefit  of 

Creditors. 
Voluntary  Associations. 

Unincorporated  religious  societies  may  take  trust  prop- 
erty for  their  benefit:  Trustees  v.  Adams,  4  Or.  76. 
Trustees  of  such  societies  may  sue  for  the  benefit  thereof: 
Id. 
Voluntary  Conveyances.     See  Deeds*  Fraudulent  Con^ 

veyances. 
Volttiitary  Payments.     See  Contracts;  Payments. 
Wagers.     See  Gaming. 

If  neither  party  wins,  each  party  has  right  to  withdraw 
his  deposit  from  stake-holder:  By  bee  v.  Burbank,  2  Or. 
296. 
Wager  on  an  election  is  illegal  and  void  as  against  public 

policy:  Willis  v.  Hoover,  9  Or.  418. 
Money  wagered  may  be  recovered  at  any  time  before  the 
event  upon  which  it  is  ventured  happens,  if  deposited 
with  the  opposite  party:  Id. 


564  Wagers. 

Wagers  (continued). 

If  deposited  with  stake-holder,  may  be  recovered  at  any- 
time before  paid  to  winner:  Id. 

"What  is  sufficient  demand  from  stake-holder:  Id. 

Purse  or  prize  offered  for  the  horse  that  will  trot  in  the 
best  time  less  than  a  given  time  is  not  a  wager:  Misner 
V.  Knapp,  13  Or.  135. 

There  must  be  an  element  of  chance  of  gain  or  risk  of  loss 
to  constitute  a  wager:  Id. 
Wages.     See  Compensation. 

In  an  action  upon  an  agreement  to  pay  a  fixed  rate,  proof 
of  reasonable  value  is  not  admissible:  Davis  v.  Mason, 
8  Or.  154. 

Where  contract  to  pay  in  gold  coin  for  services  is  void  for 
not  being  in  writing,  reasonable  value  may  be  proved 
under  proper  pleadings:  Id. 

When  a  son  working  on  his  father's  farm  is  entitled  to 
wages:  Albee  v.  Albee,  3  Or.  321. 

In  action  for  wages,  defense  that  plaintiff  did  not  work 
diligently  must  be  pleaded:  Id. 

Pefense  in  an  action  for  wages,  that  plaintiff  was  a  pauper 
when  taken  into  defendant's  family,  must  be  pleaded: 
Bennett  v.  Stephens,  8  Or.  444. 

Promise  to  pay  for  services  rendered  by  a  pauper  or  rela- 
tive taken  into  the  family  is  not  implied:  Id. 

Subsequent  express  agreement  to  pay  such  person  enti- 
tles him  to  recover  reasonable  value:  Id. 
Waiver.     See  Appeal  and  Error;  Criminal  Law;   Jurisdic- 
tion; Liens;  Practice. 
Ward.     See  Guarjdian  and  Ward. 
Warehousemen. 

Not  chargeable  with  conversion,  merely  for  mingling 
grain  stored,  with  other  grain:  Sears  v.  Abrams,  10  Or. 
499. 

The  identity  of  grain  so  stored  is  not  lost,  nor  is  it  thereby 
placed  beyond  a  lien  thereon:  Id. 

Warehouseman's  receipt  is  not  negotiable,  in  the  absence 
of  statute:  Solomon  v.  Bushnell,  11  Or.  277. 

Keceipt  transferred  carries  no  better  title  to  the  property 
than  assignor  had:  Id. 

But  a  symbolical  delivery  of  the  property  may  be  made 
by  assignment  of  receipt,  where  the  receipt  is  to  the 
bailor  or  his  order:  Gill  &  Co.  v.  Frank,  12  Or.  507. 


Waste.  5G5 

Warehousemen  (continued). 

But  wlierc  the  warehouseman  by  bis  receipt  restricts  bis 
undertaking  to  delivery  to  tbe  bailor,  a  transfer  of  tbe 
receipt  does  not,  without  the  warehouseman's  consent, 
charge  the  possession  of  the  property:  Id. 

Where  several  depositors  have  wheat  stored  in  a  ware- 
bouse,  and  a  deficiency  occurs  without  the  fault  of 
either,  all  must  suffer  loss  in  proportion  to  tbe  amount 
of  their  wheat:  Brown  and  Goodman  v.  Northcut,  14 
Or.  529. 

In  such  case,  one  who  has  received  a  larger  portion  than 
his  ratable  share  is  bound  to  account  to  the  others  for 
his  proportion  of  the  loss:  Id. 

But  it  seems  that  a  depositor  is  not  liable  for  a  share  of 
tbe  loss,  unless  it  occurred  after  he  deposited  his  wheat: 
Id. 
Warrant  of  Arrest.     See  Arrest. 
Warrants. 

Authority  of  secretary  of  state  to  draw  warrants  depends 
on  prior  appropriation:  Brown  v.  Fleischner,  4  Or.  132. 

State  treasurer  presumed  to  know  what  appropriations 
have  been  made:  Id. 

He  cannot  pay,  unless  drawn  on  special  fund,  if  not 
authorized  to  be  paid  from  the  general  fund:  Id. 

Order  of  County  Court  to  proper  officer  to  receive  and 
cancel  certain  warrants  and  pay  them  as  other  county 
warrants,  which  were  previously  issued  to  be  paid  out 
of  a  special  appropriation,  is  discretionary,  and  cannot 
be  reviewed:  Burnett  v.  Douglas  County,  4  Or.  388. 

State  treasurer  must   set  aside  a  fund  to  pay  warrants 
under  centennial  commission  act:  Simon  v.  Brown,  5 
Or.  285. 
"Tie  cannot  pay  such  warrants  out  of  the  general  appropri- 
ation act:  Id. 

County  warrants  in  the  hands  of  the  treasurer  duly  can- 
celed and  indorsed  are  presumed  paid  to  the  indorser: 
Portland  v.  Besser,  10  Or.  242. 
Warranty.     See  Deeds;  Insurance;  Sales. 
Waste. 

Injunction  lies  to  restrain  waste,  threatened  or  being 
committed:  Sheridan  v.  McMullen,  42  Or.  150. 

To  amount  to  waste,  the  injury  muat  be  permanent,  or 


566  Waste. 

Waste  (continued). 

tend  to  destroy  the  identity  of  the  property:  Davenport 
V.  Magoon,  13  Or.  3. 

May  be  accomplished  by  any  material  and  substantial 
alteration  of  a  building  leased:  Id. 

Privilege  in  a  lease  to  alter  does  not  justify  tearing  down 
and  building  another  building,  though  better:  Id. 
Water  and  Watercourses. 

Construction  of  a  conveyance  of  water  power,  with  flowage 
unobstructed:  Or.  Iron  Co.  v.  Trullinger,  2  Or.  312. 

The  right  to  flow  back  the  water  to  the  foot  of  the  present 
wheel,  and  the  right  at  all  times  to  use  all  water  which 
naturally  flows  below  said  mill,  means  the  water  as  it 
flows  from  the  mill-wheel,  the  mill  being  in  operation: 
Oregon  Iron  Co.  v.  Trullinger,  3  Of".  1. 

Right  to  use  water  implies  right  to  dam,  and  reasonably 
detain,  but  not  divert:  Id. 

What  is  an  unreasonable  detention  is  a  question  of  fact 
generally:   Id. 

Water  power  which  will  be  taken  or  rendered  less  valu- 
able by  corporation  building  canal  may  be  considered 
by  the  jury  as  an  element  of  damages  in  proceedings  to 
condemn  the  right  of  way:  Willamette  Falls  C.  &  L. 
Co.  V.  Kelly,  3  Or.  99. 

How  far  navigation  of  streams  above  tide  is  governed  by 
rules  applicable  to  large  navigable  streams:  Weise  v. 
Smith,  3  Or.  445;  Shaw  v.  Oswego  Iron  Co.,  10  Or. 
371. 

Ebb  and  flow  of  tide  not  the  test  of  navigability  in 
United  States:  Id. 

Stream  navigable  for  any  purpose  is  to  that  extent  sub- 
ject to  law  regulating  navigation:  Id.;  Haines  V.  Welch, 
14  Or.  319. 
So  private  stream  navigable  for  logs,  etc.,  is  subject  to 
such  public  use:  Id.;  Felger  v.  Robinson,  3  Or.  455; 
Shaw  v.  Oswego  Iron  Co.,  10  Or.  371;  Haines  v.  Welch, 
14  Or.  319. 

How  far  such  stream  may  be  obstructed  by  booms:  Id. 
Right  to  touch  upon  banks  of  such  stream  founded  on 

necessity:  Id. 
Riparian  owner  cannot  deny  the  public  the  right  to  navi- 
gate such  stream:  Id. , 


Water  and  Watercourses.  567 

Water  and  Watercourses  (continued). 

Question  of  necessity  of  fastening  boom  on  such  streain 
to  plaintiflf's  land  is  for  the  jury:  Id. 

And  so,  what  would  be  a  reasonable  time  for  removal 
thereof:  Id. 

The  right  to  float  logs  between  certain  points  does  not 
justify  their  injuring  dam  at  terminus:  Felger  v.  Rob- 
inson, 3  Or.  455. 
.  Stream  need  not  be  navigable  for  logs  during  the  whole 
year  to  constitute  navigable  stream  therefor:  Id.;  Shaw 
V.  Oswego  Iron  Co.,  10  Or.  371. 

Every  proprietor  of  land  tbrough  which  water  flows,  above 
or  below  the  surface,  in  a  well-defined  channel,  has  the 
right  to  its  use  without  diminution:  Taylor  v.  Welch,  6 
Or.  198;  Shively  v.  Hunt,  10  Or.  76;  Shook  v.  Colohan, 
12  Or.  239;  Weiss  v.  Oregon  Iron  etc.  Co.,  13  Or.  496. 

But  the  rule  does  not  apply  to  water  percolating  through 
the  soil  in  an  unknown  channel:  Id. 

Agreement  to  convey  land,  mill  privilege,  etc.,  construed: 
Brugger  v.  Butler,  6  Or.  459. 

The  actual  stream,  and  not  the  meander  line  improperly 
located  by  government  su  rvey,  is  the  boundary  of  a 
riparian  owner  on  a  navigable  stream:  Minto  v.  Dela- 
ney,  7  Or.  337;  Weiss  v.  Oregon  Iron  etc.  Co.,  13  Or. 
496. 

Such  owner  acquires  right  to  accretions,  and  land  so  formed 
cannot  be  entered  by  a  stranger  as  swamp-lands:  Id. 

Riparian  rights  extend  laterally  into  the  stream,  and  in- 
clude a  reef  of  rocks  connected  with  shore  at  low  water, 
but  do  not  extend  up  or  down  stream:  Moore  v.  Wil- 
lamette T.  &  L.  Co.,  7  Or.  355. 

The  United  States  can  grant  onl}'^  to  the  meander  line  of 
^^     high  tide  on  navigable  streams:    Hinman  v.  Warren, 
6  Or.  408;  Parker  v.  Taylor,  7  Or.  435. 

Land  lying  between  high  and  low  water  belongs  to  the 
state,  and  can  be  sold  by  it:  Parker  v.  Taylor,  7  Or.  435; 
Johnson  v.  Knott,  13  Or.  308. 

Shore-owner  may  build  wharves  into  the  water,  not  ob- 
structing navigation:  Id. 

Sale  by  shore-owner  of  lands  not  including  tide-land 
owned  by  him  does  not  give  the  purchaser  the  right  to 
erect  wharves  on  the  tide-lands:  Id. 


568  Water  and  Watercourses. 

Wc.ter  and  Watercourses  (continued). 

Erection  of  wharves  in  front  of  riparian  owner's  land  may 
be  enjoined:  Id. 

Water  rights  for  mining  or  other  purposes,  secured  by  laws 
of  the  United  States,  cannot  be  lost  by  non-user  alone 
short  of  the  statutory  period  of  limitation  of  real  prop- 
erty rights:  Dodge  v.  Harden,  7  Or.  456. 

Such  right  may  be  extinguished  by  abandonment:^  Id. 

Effect  of  abandonment  for  a  year  under  the  Oregon  stat- 
utes: Id. 

Reservation  in  grant  of  a  lot  bounded  on  tide-water,  of  all 
privileges  around  said  lot,  is  a  reservation  of  wharf 
rights:  Parker  v.  Rogers,  8  Or.  183. 

Instruction  given  in  action  against  one  not  a  riparian 
owner  for  diverting  stream,  held  a  -correct  statement  as 
to  riparian  owners,  but  not  pertinent  in  this  case:  Hay- 
den  v.  Long,  8  Or.  244. 

Custom  of  appropriating  water,  recognized  by  the  laws  of 
the  United  States  as  modifying  the  rights  of  riparian 
owners,  must  be  alleged  and  proved:  Lewis  v.  McClure, 
8  Or.  273. 

Agreement  made  by  parol  between  property  owners  as  to 
the  division  of  a  stream  of  water  flowing  through  their 
lands,  where  partly  performed,  may  be  enforced  in 
equity:  Coffman  v.  Robbins,  8  Or.  278. 

Where  one  buys  land,  he  is  presumed  to  buy  with  notice  of 
the  water  rights  on  the  premises:  Id. 

Grant  of  a  right  of  way  for  a  mill-race  does  not  include  a 
right  to  appropriate  water  flowing  across  the  right  of 
way  on  owner's  land:  Miller  v.  Vaughn,  8  Or.  333. 

Such  grant  is  an  easement,  and  reservation  of  the  water 
is  not  necessary:  Id. 

Grant  of  right  of  way  to  enter,  build,  repair,  etc.,  ditches, 
on  grantor's  land,  construed:  Spear  v.  Cook,  b  Or. 
380. 

Act  of  1880  (see.  3496,  Hill's  A.  L.),  to  protect  salmon, 
does  not  apply  to  the  Columbia  River:  State  v.  Stur- 
gess,  9  Or.  537;  S.  C,  10  Or.  58. 

To  divert  or  obstruct  a  watercourse  is  a  nuisance  for  which 
equity  affords  remedy:  Shively  v.  Hume,  10  Or.  76. 

Boundary  of  lands  on  streams  in  which  tide  ebbs  and 
flows,  and  large  navigable  streams,  is  high-water  mark, 


Water  and  Watercourses.  669 

Water  and  Watercourses  (continued). 

but  on  all  other  streams  is  the  middle  of  the  river:  Shaw 
V.  Opwego  Iron  Co.,  10  Or.  371. 

It  is  the  duty  of  a  railroad  company  maintaining  a  ditch 
to  protect  adjoining  proprietors  from  overflow:  David- 
son V.  0.  &  C.  R.  R.  Co.,  11  Or.  136. 

One  claiming  the  right  to  overflow  land  by  maintaining  a 
dam  must  show  a  right  to  do  so  bj*  grant,  license,  or 
prescription:  Wattier  v.  Miller,  11  Or.  329. 

Such  person  cannot  enjoin  one  in  possession  of  the  over- 
flowed land  from  draining  the  same  without  showing  a 
right  to  so  overflow  the  land:  Id. 

Such  person  must  prove  his  right  affirmatively,  and  not 
rely  on  the  weakness  of  the  title  of  him  in  possession: 
Id. 

A  former  decree  having  established  defendant's  right  to 
divert  a  stream,  it  cannot  again  be  litigated  between 
the  parties:  Neil  v.  Tolman,  12  Or.  289. 

Rights  of  shore-owner  on  tide-water  or  navigable  streams 
are  not  derived  from  the  state,  but  are  held  in  subordi- 
nation to  the  rights  of  the  public:  Wilson  v.  Welch,  12 
Or.  353. 

Covenant  in  a  deed  for  division  of  a  stream,  and  repairing 
dams  in  certain  proportions,  construed:  Salem  v.  Salem 
F.  M.  Co.,  12  Or.  374. 

In  an  action  for  damages  for  overflowing  plaintiff''s  land, 
a  variance  as  to  how  the  overflow  was  occasioned  is  im- 
material on  appeal,  when  the  error  does  not  affirmatively 
appear:  Tucker  v.  Flouring  Mills  Co.,  13  Or.  28. 

Right  to  raise  water  of  a  stream  to  a  certain  stage  is  no 
defense  to  action  for  damages  resulting  from  raising  it 
above  that  stage:  Id. 
'^Point  where  water  usually  rises  in  ordinary  high  water 
is  the  true  meander  line:  Johnson  v.  Knott,  13  Or. 
308. 

Lot-owner  having  granted  right  to  erect  wharf  in  front  of 
his  lot  on  tide-water,  his  grantee  of  the  lot  is  estopped 
by  his  deed  from  objecting  to  its  maintenance:  McCann 
'  v.  Or.  R'y  Co.,  13  Or.  455. 

Grant  of  riparian  right  by  a  donation  claimant,  prior  to 
his  obtaining  patent  by  deed  without  covenant,  passes 
no  title:  Id. 


570  Water  and  Watercourses. 

Water  and  Watercourses  (continued). 

City  of  Astoria  has  no  power  except  to  establish  wharf 
line,  as  to  erection  of  wharves  on  Columbia  Iliver:  Id. 

Riparian  proprietor  has  no  property  in  the  water  itself;  a 
simple  usufruct:  Weiss  v.  Or.  Iron  etc.  Co.,  13  Or.  49G. 

Is  entitled  to  the  use  of  the  flow  of  water  in  its  natural 
course  and  the  momemtum  of  its  fall:  Id. 

May  use  the  water  if  it  is  returned  uncorrupted  and  with- 
out essential  diminution:  Id. 

What  is  reasonable  use  is  a  question  of  degree,  depending 
upon  the  size  and  capacity  of  the  stream:  Id. 

Manufacturer  cannot  divert  and  discharge  water  in  differ- 
ent channel  without  consent  of  lower  owners,  however 
beneficial  his  enterprise  may  be  to  the  public:  Id. 

Injunction  will  issue  at  suit  of  ripari-an  owner  to  prevent 
diversion  of  stream,  though  he  suffers  small  damage, 
and  uses  little  of  the  water:  Id. 

Where  two  settlers  on  government  land  severally  divert  a 
stream  at  a  point  above  them,  and  subsequently  one  of 
them  acquires  title  to  land  at  such  point,  prior  appro- 
priation, and  not  common-law  riparian  rights,  governs: 
Kaler  v.  Campbell,  13  Or.  596. 

Under  acts  of  Congress,  settler  by  prior  appropriation  ac- 
quires a  vested  right  which  subsequent  settlers  above 
or  below  are  bound  by:  Id. 

Right  to  float  logs  down  a  stream  does  not  include  right 
to  injure  or  trespass  upon  the  banks,  or  to  cause  water 
to  overflow  to  the  injury  of  shore-owner:  Haines  v. 
Welch,  14  Or.  319. 

Whether  such  injury  was  occasioned  by  negligence  or  not 
is  immaterial:  Id. 

License  from  shore-owner  to  float  logs  down  a  stream  con- 
fers no  greater  right  on  licensee  than  he  would  have 
without  it  if  the  stream  is  navigable:  Id. 
Ways.     See  Easements;  Highways;  Municipal  Corporations. 
Wharves. 

Erection  of  wharves  in  front  of  plaintiff's  land,  which 
extends  to  high-water  mark,  may  be  enjoined:  Parker 
V.  Taylor,  7  Or.  435. 

Shore-owner  may  erect  wharves  into  the  stream,  not  ob- 
structing navigation:  Id. 

Deed  of  a  lot  bounded  by  tide-water,  reserving  all  privi- 


Wills.  571 

Wharves  (continued). 

leges  around  said  lot,  reserves  wharf  rights:  Parker  v. 
Rogers,  8  Or.  183. 
Lot-owner  having  granted  privilege  of  building  wharf  in 
front  of  his  lot  on  tide-water,  his  subsequent  grantee  of 
the  lot  is  estopped  by  his  deed  to  object  to  the  mainte- 
nance of  such  wharf:  McCann  v.  Oregon  R'y  etc.  Co., 
13  Or.  455. 
.  Power  of  city  of  Astoria  with  reference  to  erection  of 
wharves  on  Columbia  River,  within  the  city  limits,  is 
ConjEined  to  establishing  a  wharf  line:  Id.  * 

Wills.     See  Administration;  Administrators  and  Executors; 
Legacies. 

1.  Making. 

2.  Probate. 

3.  Construction  and  Effect. 

4.  Setting  Aside. 

1.  Making. 

The  making  by  the  testator  of  his  mark  to  his  will  is  suf- 
ficient signing:  Pool  v.  Buffum,  3  Or.  438;  Moreland  v. 
Brady,  8  Or.  303. 

In  such  case,  if  a  person  writes  the  testator's  name,  it  is 
not  necessary  to  state  that  he  subscribed  the  testator's 
name  at  the  latter's  request,  unless  it  be  done  by  tes- 
tator's direction:  Moreland  v.  Brady,  8  Or.  303. 

2.  Probate. 

County  Court  has  exclusive  jurisdiction  to  probate,  and  a 
will  is  not  admissible  in  evidence  to  establish  title  until 
it  has  been  probated:  Willamette  Co.  v.  Gordon,  6  Or. 
175;  Jones  v.  Dove,  6  Or.  188. 

Original  will,  after  probate,  does  not  have  to  be  offered 
and  proved  when  used  as  evidence:  Jones  v.  Dove,  6 
'^    Or.  188. 

County  Court  has  exclusive  jurisdiction,  and  its  decree  is 
conclusive  until  set  aside:  Hubbard  v.  Hubbard,  7  Or. 
42. 

Will  must  be  re-probated  when  directly  attacked,  and 
the  burden  is  on  the  proponent:  Id. 

In  such  case,  new  proof  must  be  made  in  the  same  man- 
ner as  when  a  will  is  originally  probated:  Id. 

Proceedings  in  probate  hold  regular,  if  from  all  the  papers 
in  the  record  jurisdiction  appears:  Moore  v.  Willamette 
T.  &  L.  Co.,  7  Or.  359. 


572  Wills. 

Wills  (continued). 

Objection  tliut  petition  was  not  verified  is  waived  if  not 
taken  at  the  time:  Id. 
3.    Construction  and  Effect. 

Witness  not  disqualified  from  taking  a  trust  estate  in 
wliich  he  has  no  beneficial  interest:  Hogan  v.  Wyraan, 
2  Or.  302. 

A  will  operates  only  on  the  property  found  actually  to 
belong  to  testator:  Jette  v.  Picard,  4  Or.  296. 

Intention  of  testator  is  looked  to  in  construing:  Hum- 
phreys V.  Taylor,  5  Or.  260. 

Provision  giving  wife  and  minor  children  use  of  realty 
until  disposed  of  by  executor,  legal:  Id. 

Parol  evidence  is  admissible  to  make  certain  the  person 
or  thing  described:  Jones  v.  Dove,  6  Or.  188;  S.  C,  7 
Or.  467;  Moreland  v.  Brady,  8  Or.  303. 

When  shown  to  have  been  duly  executed,  will  is  pre- 
sumed to  express  the  testator's  unrestrained  wishes, 
but  the  presumption  is  disputable:  Greenwood  v.  Cline, 
7  Or.  17. 

Executors  as  trustees  to  pay  debt  and  hold  property  for 
certain  trusts  have  implied  power  to  sell  suflicient  to 
pay  debts:   Brown  v.  Brown,  7  Or.  285. 

Order  of  confirmation  by  Probate  Court  of  such  sale  is 
unnecessary:  Id. 

Devise  to  trustees  in  perpetuity  for  benefit  of  a  city  is 
valid:  Id. 

Will,  devising  land  described  as  a  part  of  the  land  of  Bar- 
tholomew Dove,  may  be  introduced  in  evidence,  to  be 
followed  by  proof  that  Bethuel  Dove  was  meant:  Jones 
V.  Dove,  7  Or.  467. 

Bequest,  "  to  be  given  to  him  when  he  is  twenty-one  years 
of  age,"  is  a  vested  legacy,  and  on  the  death  of  legatee 
before  reaching  that  age  his  representatives  take:  War- 
ren v.  Hcmbree,    8  Or.  118. 

Parol  proof  that- testator  did  not  own  the  lots  named,  but 
did  own  others  in  same  block,  admissible:  Moreland  v. 
Brady,  8  Or.  303. 

In  such  case,  the  number  of  the  lots  is  stricken  out  as  false 
description,  and  the  number  of  the  block  being  left,  is 
lield  sufficient  description  of  the  lots  devised:  Id. 

Devise  speaks  from  time  of  testator's  death,  unless  the  in- 


Wills.  575 

Wills  (continued). 

tention  appears  otherwise:  Gerrish  v.  Hinman,  8  Or. 
348. 

Devise  to  testator's  living  children,  and  to  the  children  of 
his  deceased  children,  construed  to  intend  division  of 
property  per  stirpes,  and  not  per  capita:  Id. 

Will  of  hushand  referred  to  in  testatrix's  will,  which 
adopts  its  provisions,  becomes  a  part  thereof:  Gerrish 
V.  Gerrish,  8  Or.  351. 

Children  and  grandchildren  being  named  in  the  hus- 
band's will  are  deemed  "named  and  provided  for," 
within  the  statute  in  such  case,  by  the  testatrix's  will: 
Id. 

The  object  of  the  statute  requiring  naming  of  children  in 
will,  explained:  Id. 

Devise  to  A  and  her  body  heirs,  with  condition  of  rever- 
sion on  A's  death  without  issue,  construed:  Rowland  v. 
Warren,  10  Or.  129. 

AVill,  construed  not  to  create  a  perpetuity,  devising  to 
daughters  in  being,  with  contingent  remainders  in  their 
children,  and  certain  executory  limitations  over:  Bu- 
channan  v.  Schulderman,  11  Or.  150. 

Bequest  to  wife  of  absolute  use  and  control,  etc.,  for  life, 
held  to  confer  the  "  use,"  but  not  the  consumption  of 
the  estate  on  her:  Leahy  v.  Card  well,  14  Or.  171. 

Residue  defined;  it  is  ascertained  when  final  account  is 
presented  and  allowed:  Id. 

Residuary  legatee  is  entitled  to  take  when  final  account 
is  presented  and  acted  upon  by  the  court:  Id. 

Such  legatee  is  not  chargeable  with  interest  on  notes  given 
for  funds  belonging  to  the  estate,  after  final  settlement: 
Id. 
*$.   Setting  Aside. 

The  nature  and  weight  of  evidence  sufficient  to  set  will 
aside  for  fraud  and  undue  influence:  Greenwood  v. 
Cline,  7  Or.  17. 

Testamentary  capacity  implies  a  knowledge  of  the  prop- 
erty, and  of  the  manner  in  which  it  is  desired  to  dispose 
of  it:  Hubbard  v.  Hubbard,  7  Or.  42;  Heirs  of  Clark  v. 
Ellis,  9  Or.  128. 

The  character  of  the  provisions  of  the  will  may  be  ex- 
amined when  undue  influence  is  alleged,  but  is  not 


574  Wills. 

Wills  (continued). 

alone  sufficient  to  set  the  will  aside  upon  that  ground: 
Id. 

Not  sufficient  to  show  mere  motive  and  opportunity  of 
beneficiary  to  use  undue  influence,  but  that  he  did  ex- 
ert the  undue  influence:  Id. 

Acts  done  in  course  of  administration  under  a  will,  which 
is  afterwards  set  aside  for  the  insanity  of  the  testator, 
are  valid:  Brown  v.  Brown,  7  Or.  285. 

County  Court  has  jurisdiction  in  proceeding  to  contest 
will  and  revoke  letters  testamentary:  Heirs  of  Clark  v. 
ElHs,  9  Or.  128. 

Insanity  at  the  time  of  making  the  will  is  not  presumed, 
where  the  nature  of  the  testator's  malady  is  occasional 
and  temporary:  Id. 

Delirium  in  an  aged  infirm  person  distinguished  from  in- 
sanity: Id. 

The  test  of  capacity  to  make  will  is,  whether  testator's 
mind,  at  the  time,  was  capable  of  knowing  and  under- 
standing what  he  was  doing,  and  to  whom  he  was  giv- 
ing his  property:  Id. 
Witnesses.  See  Costs  and  Disbursements;  Evidence;  Fees; 
Wills. 

1.  Competency. 

2.  Credibility. 

3.  Examination. 
1.    Competency. 

Where  two  persons  are  jointly  indicted,  though  tried  sep- 
arately, one  cannot  testify  for  the  other  until  acquitted 
or  convicted:  Latshaw  v.  Territory,  1  Or.  141. 

Witness  not  rendered  incompetent  by  referring  to  a  mem- 
orandum before  being  called:  White  v.  Allen,  3  Or.  103. 

Prosecutrix  in  a  case  of  rape,  though  a  child,  must  be 
sworn:  8  Or.  177. 

There  is  no  precise  age  beyond  which  children  are  com- 
petent; their  understanding  is  the  test:  State  v.  Jack- 
son, 9  Or.  457." 

Discretionary  with  court  to  allow  child  to  testify,  and 
discretion  not  reviewable:  Id. 

Neither  husband  nor  wife  can,  without  consent  of  other, 
testify  concerning  communications  made  by  the  other 
during  marriage:  Long  and  Spaur  v.  Lander,  10  Or. 
175. 


Witnesses.  '676 

Witnesses  (continued). 

Failure  of  attorney  to  object  to  such  testimony  does  not 
render  witness  competent,  but  on  appeal  it  is  presumed 
consent  was  given:  Id, 

Witness,  examined  by  the  grand  jury,  whose  name  is  not 
put  on  the  indictment,  may  be  examined  by  the  prose- 
cution, where  the  defendant  is  not  misled  as  to  his  de- 
fense: State  V.  Anderson,  10  Or.  448. 

Act  of  1880,  amendatory  of  section  166,  Criminal  Code 
(sec.  1365,  Hill's  A.  L.),  does  not  make  co-defendants 
jointly  indicted  competent  witnesses  for  each  other: 
State  V.  Drake,  11  Or.  396. 

Whether  the  acquittal  of  a  co-defendant,  thus  rendering 
him  competent,  he  being  a  material  witness,  is  ground 
for  new  trial,  qiieere:  Id. 

Who  is  an  "  intimate  acquaintance,"  competent  to  testify 
as  to  sanity:  State  v.  Murray,  11  Or.  413. 

An  accessary  before  the  fact  is  not  a  competent  witness 
on  behalf  of  the  prisoner:  Edwards  v.  Territory,  1  W. 
T.  195. 

Statutes  of  1862-63  do  not  alter  the  rule  of  the  common 
law  in  this  respect:  Id. 

Right  of  adverse  party  to  be  examined  as  a  witness,  when 
the  "  assignor  of  a  thing  in  action  "  has  been  so  exam- 
ined: Glasford  and  Shield  v.  Baker  and  Cain,  1  W.  T. 
224. 

Exclusion  of  witness  from  testifying  for  the  prisoner  on 
account  of  drunkenness;  when  party  entitled  to  new 
trial:  Fox  v.  Territory,  2  W.  T.  297. 

In  action  by  administrator  against  son  of  the  deceased, 

for  misappropriation  of  part  of  the  estate,  a  brother  of 

the  defendant  is  competent  witness  in  his  behalf,  not 

being  interested  adversely  to  the  estate:  McCoy  v.  Ayers, 

^      2  W.  T.  307. 

2.   Credibility. 

Evidence  laying  ground  for  impeachment  must  be  rele- 
vant: Roberts  v.  Carland,  1  Or.  332. 

Inconsistent  declarations  are  admissible  to  impeach,  but 
.are  not  evidence  of  the  facts  therein  stated:  State  v. 
Fitzhugh,  2  Or.  227. 

Party,  witness  for  herself,  cannot  be  impeached  by  her 


576  Witnesses. 

Witnesses  (continued). 

letter,  written  to  third  person  in  language  indicating 
that  she  is  unchaste:  Leverich  v.  Frank,  6  Or.  212. 

Moral  character  cannot  be  impeached  by  evidence  of  par- 
ticular acts:  Id. 

Particular  facts  called  out  on  cross-examination  of  im- 
peaching witness  may  be  considered  by  the  jury  on  the 
credibility  of  the  witness  impeached:  Steeples  v.  New- 
ton, 7  Or.  110. 

Method  of  impeaching  by  inquiring  into  general  reputa- 
tion: Page  V.  Finley,  8  Or.  45;  State  v.  Clark,  9  Or. 
466. 

Of  impeaching  by  inconsistent  statements:  State  v.  Mc- 
Donald, 8  Or.  113;  Sheppard  v.  Yocum  and  De  Lash- 
mutt,  10  Or.  402;  State  v.  Abrams,'ll  Or.  169;  State  v. 
Lurch,  12  Or.  104;  Krewson  &  Co.  v.  Purdom,  13  Or. 
563;  Thompson  V.  Territory,  1  W.  T.  547. 

In  determining  the  credibility  of  a  witness,  the  jury  may 
consider  the  probabilities  of  truth  of  his  statements 
from  their  own  experience:  State  v.  Ah  Lee,  8  Or. 
214. 

Where  witness  has  been  impeached  by  proof  of  inconsis- 
tent statements,  evidence  of  his  reputation  for  veracity 
may  be  introduced  in  rebuttal:  Glaze  v.  Whitley,  5  Or. 
164;  contra,  Sheppard  v.  Yocum  and  De  Laslimutt,  10 
Or.  402. 

Declarations  of  hostility  by  witness  admissible,  subject  to 
same  rules  as  inconsistent  statements:  State  v.  Stew- 
art, 11  Or.  52;  S.  C,  11  Or.  238;  State  v.  Mackey,  12 
Or.  154. 

Defendant  in  criminal  action  offering  himself  as  a  witness 
may  be  cross-examined  as  to  making  contradictory 
statements,  with  a  view  to  impeaching  him:  State  v. 
Abrams,  11  Or.  169. 

Only  the  substance  of  the  contradictory  statements  im- 
puted to  a  witness  in  the  impeaching  questions  need  be 
proved  to  impeach  him:  Id. 

Error  to  instruct  jury  to  disregard  "  mere  slight  variances" 
between  witnesses:  State  v.  Swayze,  11  Or.  357. 

Whether  or  not  witness  came  in  obedience  to  subpoena, 
how  far  he  traveled,  and  whether  his  fees  were  paid, 


Witnesses.  577 

Witnesses  (continued). 

are  immaterial,  and  jury  cannot  form  inference  from 
such  facts:  Hurst  v.  Burnside,  12  Or.  520. 

Witness  may,  on  cross-examination,  be  asked  if  he  has 
ever  been  convicted  of  crime  and  confined  in  jail,  and 
the  record  may  also  be  introduced  to  prove  the  fact: 
State  V.  r,acon,  13  Or.  143. 

The  friendship,  relationship,  and  bias  of  a  witness  may 
be  shown  by  cross-examination:  Id. 

Subject  to  discretion  of  the  court,  a  witness  may  be  asked 
and  required  to  answer  any  questions,  however  disgrace- 
ful, affecting  his  credibility,  not  criminating  himself: 
Id. 

Examination  for  the  purpose  of  disgracing  a  witness,  and 
not  to  show  his  credibility,  should  not  be  allowed:  Id. 

Witness  may  be  asked  if  he  has  ever  been  arrested  for 
crime:  Id. 

In  criminal  case,  any  question  which  shows  the  hostility 
of  the  witness  should  be  allowed  on  cross-examina- 
tion in  favor  of  the  defense:  State  v.  Mah  Jim,  13  Or. 
235. 

Upon  redirect  examination  of  witness  who  acknowledged 
hostSity,  the  court  permitted  him  to  state  the  grounds 
of  his  hostility,  against  the  objections  of  opposite  party, 
but  refused  to  allow  the  latter  to  disprove  the  matter 
so  testified  to;  held,  bad  practice,  but  not  error:  Bagley 
v.  Carpenter,  2  W.  T.  19. 
3.   Examination. 

Writing  must  be  submitted  to  witness  for  inspection  be- 
fore examination  as  to  its  contents:  State  v.  Taylor,  3 
Or.  10. 

Error  to  exclude  a  witness  from  testifying  because  he  was 
present  during  the  examination  of  other  witnesses, 
against  the  order  of  the  court,  unless  it  appears  that 
the  party  was  in  complicity  with  him:  Hubbard  v. 
Hubbard,  7  Or.  12. 

But  such  witness  may  be  fined  for  contempt:  Id. 

Discretionary  with  court  to  permit  party  during  cross- 
examination  to  ask  witness  questions  not  relating  to  his 
direct  testimony,  subject  to  rules  of  direct  examination: 
Long  and  Spaur  v.  Lander,  10  Or.  175. 

Ok.  Dig.— 37 


578  Witnesses. 

Witnesses  (continued). 

Use.  of  a  diagram  by  a  witness  to  locate  and  identify 
places  and  objects:  Sheppard  v.  Yocum  and  De  Lash- 
mutt,  10  Or.  402. 

Impeaching  witness  may  be  required  on  cross-examina- 
tion to  give  all  the  conversation  in  which  the  contra- 
dictory statements  are  said  to  have  been  made:  State 
V.  Abrams,  11  Or.  169. 

Witness  may  be  asked  on  cross-examination  if  he  told  the 
attorneys  what  he  would  testify:  Id. 

Mode  of  examining  intimate  acquaintance  as  to  sanity  of 
defendant  in  criminal  case:  State  v.  Murray,  11  Or, 
413. 

In  forgery  case,  witness  for  state,  having  testified  that  he 
did  not  sign  the  note,  cannot  be  recalled  by  the  state  to 
write  his  name  for  comparison:  State  v.  Lurch,  12 
Or.  99. 

Defendant,  witness  for  himself,  may  be  cross-examined 
only  as  to  matters  testified  to  on  direct  examination: 
Id.;  State  v.  Saunders,  14  Or.  300. 

So  in  forgery  case,  defendant  cannot,  on  cross-examina- 
tion, be  made  to  write  his  name  or  other  names,  not 
having  testified  to  such  matters  on  direct  examination: 
Id. 

It  is  the  duty  of  the  court  to  interpose  and  keep  cross- 
examination  within  reasonable  bounds:  State  v.  Bacon, 
13  Or.  143. 

In  capital  cases,  great  latitude  should  be  allowed  in  favor 
of  the  defense:  State  v.  O'Neil,  13  Or.  183;  State  v. 
Mah  Jim,  13  Or.  235. 

Counsel  should  be  allowed  to  pursue  their  own  course,  so 
long  as  they  keep  within  reasonable  bounds:  State  v. 
Mah  Jim,  13  Or.  235. 

Witness  may  translate  document  written  in  a  foreign 
language,  though  not  sworn  as  an  interpreter:  Krewson 
&  Co.  V.  Purdom,  13  Or.  563. 

Parties  cannot  be  excluded  from  the  room  during  trial, 
under  a  statute  giving  court  power  to  exclude  witnesses: 
Schneider  v.  Haas,  14  Or.  174. 

Right  to  face  witnesses  in  criminal  case  is  not  denied  the 
defendant  by  admitting  dying  declarations,  or  docu- 


Writ  of  Error.  679 

Witnesses  (continued). 

mentary  evidence  of  collateral  facts:  State  v.  Sau-aders, 
14  Or.  300. 
Witness  may  refresh  his  memory  ly  reference  to  bill  of 
particulars  in  his  own  handwriting:  Williams  &  Co.  v. 
Miller  &  Co.,  1  W.  T.  88. 
Defendant,  testifying,  subjects  himself  to  the  rules  con- 
trolling the  examination  of  other  witnesses:  Thompson 
V.  Territory,  1  W.  T.  547. 

Women.     See  Husband  and  Wife;  Jury  and  Jury  Trial. 

Writ  of  Error.     See  Appeal  and  Error* 


■■'t^^ 


CITATIONS   OF  CASES 


REPORTED   IN    THE 


OEEGON,  WASHINGTON,  DEADY,  AND 
SAWYER  REPORTS. 


LIST   OF   CHARA.CTEIIS   USED. 


^  Approved. 
^  Cited. 
^  Denied. 
^  Explained. 
^  Followed. 
"  Harmonized. 
^  Limited. 


^  Modified. 

°  Overruled. 

^  Questioned  or  doubted. 

^  Reversed. 

^  Criticised. 

^  Distinguished. 

S.  C.  Same  case. 


''h 


CITATIONS   OF   CASES 


REPORTED    IN    THE 


OEEGON,  WASHINGTON,  DEADY,  AND 
SAWYER  EEPOETS. 


Abercorn,  The,  11  Saw.  530.     ^Ex  parte  Hanson,  11  Saw.  662; 
Adams  v.  Burke,  3  Saw.  415.     '^Wythe  v.  Haskell,  3  Saw. 

578;  ^Bear  v.  Luse,  6  Saw.  154, 
All  Chong,  In  re,  6  Saw.  451.     *^The  Railroad  Tax  Case,  8 

Saw.  286. 
Ah  Fong,  In  re,  3  Saw.  144.     *^Parrott's  Chinese  Case,  6  Saw. 

379;  ^The  Railroad  Tax  Case,  8  Saw.  302. 
Ah  Kee,  In  re,  10  Saw.  336.     ^In  re  Look  Tin  Sing,  10  Saw. 

353. 
Ah  Kow  V.  Kunan,  5  Saw.  552.     *^The  Railroad  Tax  Case,  8 

Saw.  302;  ^In  re  Wo  Lee,  11  Saw.  435. 
Ah  Lee,  In  re,  6  Saw.  410.     '''Burns  v.  Multnomah  R.  Co.,  8 

Saw.  552;  ^In  re  Lee  Tong,  9  Saw.  336;  ^In  re  Wan  Yin, 

10  Saw.  538. 
Ah  Lep  V.  Gong  Choy,  13  Or.  205.     ^Morgan  v.  Thompson,  13 
^       Or.  230. 
Ah  Quan,  In  re,  10  Saw.  222.     '^In  re  Chew  Heong,  10  Saw. 

374. 
Ah  Yup,  In  re,  5  Saw.  155.     *^In  re  Ah  Chong,  6  Saw.  458; 

*^In  re  Camille,  6  Saw.  54. 
Aiken   v.    Ferry,   6   Saw.   79,     *^Bear  v.  Luse,  6   Saw,    156; 

SShively  V.  Welch,  10  Saw.  141. 
Allen  V.  Hirsch,  8  Or.  412.     ^Crawford  v.  Linn  County,  11 

Or.  498;  ^Dundee  etc.  Co.  v.  School  District,  10  Saw.  79. 


584  Citations  of  Cases. 

Anderson  v.  Baxter,  4  Or.  105.     ^Roberts  v.  Sutherlin,  4  Or. 

222;  cRenshaw  v.  Taylor,  7  Or.  321;  ^Witherill  v.  Wiberg, 

4  Saw.  236;  ^Eubanks  v.  Leveridge,  4  Saw.  277;  ^Semple 

V.  Bank  of  British  Columbia,  5  Saw.  101;  *^Semple  v.  Bank 

etc.,  5  Saw.  400. 
Anderson  v.  Ross,  2  Saw.  91.     *^White  v.  McDonough,  3  Saw. 

313. 
Andrus  v.  Knott,  12  Or.  501.     ^Johnson  v.  Knott,  13  Or.  312. 
Ankeny  v.  Fairview  Milling  Co.,  10  Or.  390.     ^Kothenberthal 

V.  City  of  Salem  Co.,  13  Or.  605. 
Ankeny  v.  Multnomah  County,  3  Or.  386.     ^S.  C,  4  Or.  271; 

^Wetmore  v.  Multnomah  County,  6  Or.  464. 
Annie  M.  Smull,  The,  2  Saw.  226.     '-"State  v.  Sturgess,  9  Or. 

540;  ^State  v.  Sturgess,  10  Or.  61. 
Bachman  v.  Everding,  1   Saw.  70.     ^Witherill   v.  Wiberg,  4 

Saw.  233;  ^Bank  of  British  North  America  v.  Ellis,  6 

Saw.  98. 
Bailey  v.  Warren,  1  Or.  357.     ''Ketchum  v.  State,  2  Or.  105. 
Baker  v.  Eghn,  11  Or.  333.     ^Strong  v.  Kamm,  13  Or.  i:8. 
Baker  v.  Portland,  5  Saw.  566.     ^Parrott's  Chinese  Case,  6 

Saw.  374. 
Baldro  v.  Tolmie,  1  Or.  176.     ^Ketchum  v.  State,  2  Or.  106. 
Balfour  v.  Sullivan,  8  Saw.  648.     ^Balfour  v.  Sullivan,  10  Saw. 

104;  ^Pascal  v.  Sullivan,  10  Saw.  285. 
Bamford  v.  Baraford,  4  Or.  30.     ^Wetmore  v.  Wetmore,  5  Or. 

472;  ^Hall  v.  Hall,  9  Or.  456;  ^Barrett  v.  Failing,  6  Saw. 

475. 
Bajik  of  British  America  v.  Page,  6  Or.  431.    '^Singer  S.  M.  Co. 

v.  Graham,  8  Or.  21;  ''Hacheny  v.  Leary,  12  Or.  46;  *^Seni- 

ple  V.  Bank  of  British  Columbia,  5  Saw.  90;  '^Northwest- 
ern Ins.  Co.  V.  Elliott,  7  Saw.  21. 
Bank  of  British  North  America  v.  Ellis,  6  Saw.  96.     ^Peyser 

V.  Cole,  11  Or.  45;  ^P.  R.  M.  Co.  v.  D.  S.  &  G.  R.  R.  Co., 

7  Saw.  68;  '^Burns  v.  Scoggin,  10  Saw.  75. 
Barrett  v.  Failing,  6  Saw.  473.     ^Ilall  v.  Hall,  9  Or.  456. 
Barrett  v.  Failing,  8  Or.  152.     ^Neil  v.  Tolman,  12  Or.  295; 

*^Glenn  v.  Savage,  14  Or.  574. 
Bartel  v.  Lope,  6  Or.  321.     ^Lr^dd  v.  Mason,  10  Or.  318. 
Beadle,  In  re,  5  Saw.  351.     «^In  re  Estes,  6  Saw.  462. 
Beacannon  v.  Liebe,  11  Or.  443.     ^Burrage  v.  B.  G.  &  Q.  M. 

Co.,  12  Or.  172. 


Citations  of  Cases.  585 

Beqnct  v.  People's  Transportation  Co.,  2  Or.  200.     '"Holstine 

V.  O.  &  C.  R.  R.  Co.,  8  Or.  109. 
Bennett  v.  Bennett,  1  Deady,  290.     "Keyes  v.  Llooney,  13  Or. 

182. 
Besser  v.  Hawthorne,  3  Or.  129.     ^S.  C,  3  Or.  512;  ^De  Lash- 
mutt  V.  Scllwood,  10  Or.  326. 
Bird  V.  Wasco  County,  3  Or.  282.     ^Dolan  v.  Barnard,  5  Or. 

393. 
Bissell  V.  Henshaw,  1  Saw.  553.     ^S.  C,  18  Wall.  268;  ^Leroy 

V.  Carroll,  3  Saw.  68;  <^Mora  v.  Nunez,  7  Saw.  464;  ^S.  P. 

R.  R.  Co.  V.  Dull,  10  Saw.  516. 
Blanchard  v.  Bennett,  1  Or.  329.     ^Schirott  v.  Pliillippi,  3  Or. 

486;  oRamsey  v.  Pettengill,  14  Or.  208. 
Board  of  Commissioners  v.  Babcock,  5  Or.  472.     ^Nicklin  v. 

Betts  Spring  Co.,  11  Or.  411. 
Boehreinger  v.  Creighton,  10  Or.  42.     TBloomfield  v.  Huma- 

son,  11  Or.  233. 
Bogart,  In  re,  2  Saw.  396.     ^In  re  White,  10  Saw.  51. 
Bohlraan  v.  Coffin,  4  Or.  313.     ^Carter  v.  Portland,  4  Or.  350; 

'^Musgrove  v.  Bonser,  5  Or.  317;  ^Baker  v.  Woodward,  1^ 

Or.  9;  ^Goodenough  v.  Warren,  5  Saw.  501. 
Boire  v.  McGinn,  8  Or.  466.     ^Bloomfield  v.  Buchanan,  14  Or. 

183. 
Bowas  V.  Pioneer  Tow  Line.  2  Saw.  21.     *^The  Chandos,  6  Saw. 

548. 
Bowen  v.  State,  1  Or.  270.     ^State  v.  Wilson,  6  Or.  429. 
Bowles  V.  Doble,  11  Or.  474.     ^ Wells  v.  Applegate,  12  Or.  209. 
Boyd,  In  re,  4  Saw.  262.     ^Creighton  v.  Leeds,  9  Or.  220;  ^In 

re  Estes,  6  Saw.  467. 
Boyer  v.  Fowler,  1  W.  T.  101.     ^Mcigs  v.  Keach,  1  W.  T.  305. 
Branson  v.  Oregonian  R'y  Co.,  10  Or.  278.     ^Branson  v.  Orego- 
^   nian  R'y  Co.,  11  Or.  163. 

Breon  v.  lienkle,  14  Or.  494.     ^Glenn  v.  Savage,  14  Or.  576. 
Brown  v.  Brown,  7  Or.  285.     ^lleirs  of  Clark  v.  Ellis,  9  Or. 

131. 
Brown  Bros.  v.  Pepin,  1  W.  T.  205.     ^Clarke  Co.  v.  Commis- 
sioners, 1  W.  T.  252. 
Brummet  v.  Weaver,  2  Or.   168.     ^Lemon  v.  Waterman,  2 

W.  T.  491. 
Brugger  v.  State  Livestment  Ins.  Ca,  5  Saw.  304.    '^Herbert  v. 


586  Citations  op  Cases. 

Mutual  Life  Ins.  Co.,  8  Saw.  200;  ^Spa,re  v.  Home  Mutual 

Ins.  Co.,  9  Saw.  148;  ^Durham  v.  Fire  and  Marine  Ins. 

Co.,  10  Saw.  529. 
Bryant,  In  re,  1  Deady,  118.     ^Ex  parte  Sanson,  11  Saw.  632. 
Buckley  v.  Gould  &  Curry  S.  M.  Co.,  8  Saw.  394.     ^Bunt  v. 

Sierra  Buttes  G.  M.  Co.,  11  Saw.  181. 
Bullene  v.  Garrison,  1  W.  T.  587.     ^Page  v.  Rodney,  2  W.  T. 

463. 
Burch  V.  Earhart,  7  Or.  58.     ^State  v.  Brown,  10  Or.  223. 
Burchard  v.  State  of  Oregon,  2  Or.  78.     ^East  Portland  v. 

Multnomah  County,  6  Or.  64.  , 
Burkhart  v.  Howard,  14  Or.  39.    ^Gee  v.  McMillan,  14  Or.  275. 
Burke  v.  Flood,  6  Saw.  220.     ^Dannmeyer  v.  CoLeman,  8  Saw. 

58;,  ^Bell  v.  Donohoe,  8  Saw.  437 
Burnett  v.  Douglas  County,  4  Or.  388.     ^Canyonville  &  G. 

Road  Co.  V.  Douglas  County,  5  Or.  283. 
Burns  v.  Multnomah  R'y  Co.,  8  Saw.  553.     ^Hughes  v.  N.  P. 

R.  R.  Co.,  9  Saw.  322. 
Burns  v.  Scoggin,  9  Saw.  73.     ^Balfour  v.  Davis,  14  Or.  54. 
Bybee  v.  Hawkett,  6  Saw.  593.     ^Hughes  v.  N.  P.  R.  R.  Co.,  9 

Saw.  318. 
Cahn  V.  Barnes,  7  Saw.  48.     <^Miller  v.  Tobin,  9  Saw.  410. 
California,  The,  1  Saw.  596.     '^In  re,  St.  Helen  Mill  Co.,  3  Saw. 

92. 
California,  The,  1  Saw.  463.     ^Holmes  v.  Or.  &  Cal.  R.  R.  Co., 

6  Saw.  272;  ^The  Glenearne,  7  Saw.  202;  ^The  Whistler, 

8  Saw.  235;  «Neil  v.  Wilson,  14  Or.  413. 
Campbell  v.  Bridwell,  5  Or.  311.     ^French  v.  Cresswell,  13  Or. 

422. 
Canada,  The,  7  Saw.  173.     ^City  of  Salem,  7  Saw.  479. 
Canyon  Road  Co.  v.  Lawrence,  3  Or.  519.     ^State  v.  McKin- 

non,  8  Or.  486;  '^Odell  v.  Gotfrey,  13  Or.  469. 
Canyonville  &  G.  Road  Co.  v.  Douglas  County,  5  Or.  280. 

^Douglas  Road  Co.  v.  Douglas  County,  5  Or.  409. 
Canyonville  &  G.  Road  Co.  v.  Stephenson,  8  Or.  263.     ^State 

V.  Douglas  County  Road  Co.,  10  Or.  192. 
Cardwell   v.  The   American   River  Bridge   Co.,  9   Saw.  662. 

^'Scheerer  v.  Coiumbia  St.  Bridge  Co.,  11  Saw.  577. 
Carr,  In  re,  3  Saw.  316.     ^Vaters  v.  Campbell,  5  Saw.  21; 

''Kie  V.  United  States,  11  Saw.  581. 


Citations  of  Cases.  587 

Carney  v.  Barrett,  4  Or.  471.     ^Coyote  G.  &  S.  M.  Co.  v. 

Ruble,  9  Or.  122. 
Cason  V.  Stone,  1  Or.  39.     ^Drewv.  Gant,  1  Or.  199;  ^Beckley 

V.  Learn,  3  Or.  471. 
Carter  v.  Portland,  4  Or.  339.     ^Douglas  County  Road  Co.  v. 

Abraham,  5  Or.  321, 
Carter,  Rice,  &  Co.  v.  Koshland,  12  Or.  492.     '"Carter,  Rice,  & 

Co.  V.  Koshland,  13  Or.  615. 
Carter  v.  Chapman,  2  Or.  93.     ^Frarey  v.  Wheeler,  4  Or.  197; 

^Fields  V.  Squires,  1  Deady,  366;  *^Shockley  v.  Brown,  1 

W.  T.  466. 
Carter  v.  Baker,  1  Saw.  512.     ^Fisher  v.  Craig,  3  Saw.  73. 
Cartwright  v.  Savage,  5  Or.  397.     ^Bank  of  British  Columbia 

V.  Harlow,  9  Or.  341. 
Catlin  V.  Currier,  1  Saw.  7.     ^In  re,  Morrill,  2  Saw.  361. 
Catlin  V.  Hoffman,  2  Saw.  291.     ^United  States  v.  Griswold,. 

7  Saw.  304. 
Central  Pacific  R.  R.  Co.  v.  Dyer,  1  Saw.  641.     ^Gillespie  v. 

Cummings,  3  Saw.   260;  '^Southern  Pacific  R.  R.  Co.  v. 

Orton,  6  Saw.  198;  ^Sanger  v.  Sargent,  8  Saw.  94;  ^'S.  P. 

R.  R.  Co.  V.  Dull,  10  Saw.  512;  <^Wells,  Fargo,  &  Co.  v. 

Miner,  11  Saw.  285. 
Chambers  v.  Chambers,  4  Or.  153.     *^Proebstel  v.  Ilogue,  8. 

Saw.  597. 
Chandos,  The,  6  Saw.  544.     ^The  Clatsop  Chief,  7  Saw.  279. 
Chapman  v.  Ferry,  8  Saw.  191.     ^S.  C,  9  Saw.  395. 
Chapman  v.  School  District  No.  1,  1  Deady,  108.     ^Dolph  v. 

Barney,  5  Or.  202;  ^Chapman  v.  School  District  No.  1,  1 

Deady,  140;  ^Fields  v.  Squires,  1  Deady,  398;  ^Lamb  v. 

Davenport,  1  Saw.  632;  ^Fitzpatrick  v.  Dubois,  2  Saw- 

438;  nVythe  v.  Haskell,  3  Saw.  578;  ^Dowell  v.  Card- 
^    well,  4  Saw.  230;  "-Bear  v.  Luse,  6  Saw.  154;  ^Sanger  v. 

Sargent,  8  Saw.  95;  ^Myers  v.  Reed,  9  Saw.  139. 
Chapman  v.  State,  5  Or.  432.    ^Case  T.  M.  Co.  v.  Campbell, 

14  Or.  465. 
Chapman  v.  Toy  Long,  4  Saw.  28.     '^United  States  v.  Nelson, 

5  Saw.  71;  *^Bakcr  v.  Portland,  5  Saw.  571.  * 

Chavener  v.  Wood,  2  Or.  162.     ^Lauriat  v.  Stratton,  6  Saw. 

842. 
Chin  Ah  Sooey,  In  re,  10  Saw.  277.    ^In  re  Ah  Kee,  10  Saw. 

344. 


588  Citations  of  Cases. 

Chow  Goo  Pool,  9  Saw.  606.     ^In  re  All  Kee,  10  Saw.  844. 

Christian  v.  Evans,  5  Or.  253.  ^Luse  v.  Luse,  9  Or.  149; 
^Broback  v.  Huff,  11  Or.  395;  ^Lancaster  v.  McI>onald, 
14  Or.  266. 

Clark  V.  Bayley,  5  Or.  343.     ^Springer  v.  Young,  14  Or.  289. 

Chne  V.  Broy,  1  Or.  89.     SState  v.  Fitzhugh,  2  Or.  236. 

Cogswell  V.  Wilson,  11  Or.  371.  ^Bloomfield  v.  Buchanan,  13 
Or.  114. 

Coleman  v.  Stark,  1  Or.  115.     ^Wilson  v.  McEwen,  7  Or.  105. 

Coleman  v.  Yesler,  1  W.  T.  591.  ^Seattle  &  C.  R.  R.  v.  Ah 
Kow,  2  W.  T.  39;  ^Parker  v.  Denny,  2  W.  T.  361. 

Cole  Silver  M.  Co.  v.  V.  &  G.  H.  W.  Co.,  1  Saw.  470.  ^Portland 
V.  Oregonian  R'y  Co.,  7  Saw.  126;  ^Hatch  v.  W.  I.  Bridge 
Co.,  7  Saw.  140;  ^Bell  v.  Donohoe,  8  Saw.  437;  ^Hass  v. 
Sedlak,  9  Or.  464. 

Columbus,  The  Schooner,  5  Saw.  487.  ^Steamboat  S.  M.  Whip- 
ple, 7  Saw.  72. 

Comstock,  In  re,  3  Saw.  218.  ^Bank  of  British  Columbia  v. 
Page,  6  Or.  436;  ''Semple  v.  Bank  of  British  Columbia,  5 
Saw.  90;  ''N.  W.  Ins.  Co.  v.  Elliott,  7  Saw.  19;  ^Orapige 
National  Bank  v.  Traver,  7  Saw.  212;  ^Spare  v.  Home 
Mutual  Insurance  Co.,  8  Saw.  624;  ^Oregonian  Railway 
Co.  V.  0.  R.  &  N.  Co.,  10  Saw.  479. 

Comstock,  In  re,  3  Saw.  128.  ^In  re  Oregon  Bulletin  C<x,  3 
Saw.  531. 

Coolidge  V.  McCone,  2  Saw.  571.  *^Matteson  v.  Caine,  8  Saw. 
500. 

Cook  V.  Multnomah  County,  8  Or.  170.  ^Pruden  v.  Grant 
Co.,  12  Or.  309. 

Cooper  V.  McGrew,  8  Or.  327.     ^Fox  v.  McKinney,  9  Or.  499. 

Coos  Bay  Wagon  Road  Co.  v.  Crocker,  6  Saw.  574.  *^Kelly  v. 
Ruble,  11  Or.  117;  ^Gee  v.  McMillan,  14  Or.  275. 

Corbett  v.  Territory,  1  W.  T.  431.  <^Cascades  R.  R.  Co.  v. 
Sohns,  1  W.  T.  558. 

Corpe  V.  Brooks,  8  Or.  222.     ^Vardwell  v.  Paige,  9  Or.  524. 

Corvallis  v.  Carlisle,  10  Or.  139.    ^In  re  Wan  Yin,  10  Saw.  535. 

Coulson  v.  Portland,  1  Deady,  481.  ^Salem  Water  Co.  v.  Sa- 
lem, 5  Or.  35;  ^Tilton  v.  0.  C.  M.  R.  Co.,  3  Saw.  25;  ^W. 
P.  H.  A.  V.  Lownsdale,  9  Saw.  117;  ^Dundee  etc.  Co.  v. 
School  District,  10  Saw.  59. 


CiTATioiJs  OF  Cases.  589 

Cowenia  v.  Hannah,  3  Or.  465.     *^Town  v.  De  Haven,  5  Saw. 

148. 
Coyote  Gold  and  Silver  Mining  Co.  v.  Ruble,  8  Or.  284.     ^Kelly 

V.  Ruble,  11  Or.  104. 
Craig  V.  Fisher,  2  Saw.  345.     ^W.  F.  &  Co.  v.  0.  R.  &  N.  Co., 

9  Saw.  604. 
Craig  V.  Hosier,  2  Or.  323.     ''Multnomah  County  v.  Adams,  6 

Or.  115;  ^Taylor  v.  Jenkins,  11  Or.  275. 
Crandall  v.  Piette,  1  Or.  226.     nVhite  v.  Northwest  Stage  Co., 

5  Or.  103. 
Crawford  v.  Abraham,  2  Or.  163.     ^Wilson  v.  Salem,  3  Or.  482; 

^'Howe  V.  Douglas   Co.,  3  Or.  490;  ^Cross  v.  Chichester, 

4  Or.  116;  ^Coleman  v.  Ross,  14  Or.  351. 
Crawford  v.  Haller,  2  W.  T.  161.     ^Sayward  v.  Guye,  2  W.  T. 

421. 
Crawford  v.  Linn  County,  11  Or.  482.     ^Dundee  Mortgage  etc. 

Co.  V.  Parrish,  11  Saw.  95;  "^King  v.  Dundee  etc.  Co.,  11 

Saw.  664. 
Crawford  v.  Roberts,  8  Or.  324.     ^Sheppard  v.  Yocum,  11  Or. 

236;  ^Trabant  v.  Rummell,  14  Or.  19. 
Cressey  v.  Tatom,  9  Or.  541.     ^Goodwin  v.  Morris,  9  Or.  324. 
Cross  V.  Chichester,  4  Or.  114.     ^Alberson  v.  Mahaffey,  6  Or. 

413;  ^State  v.  McKinmore,  8  Or.  207. 
Crossen   v.  Wasco   County,    10   Or.   111.     ^Pruden   v.  Grant 

County,  12  Or.  310. 
Cutler  V.  S.  S.  Columbia,  1   Or.  101.     ^Nickels  v.  Griffin,  1 

W.  T.  383. 
Cutting  V.  Cutting,  6  Saw.  396.    ^Proebstel  v.  Hogue,  8  Saw. 

596. 
Dalles  Lumber  &  M.  Co.  v.  Wasco  W.  M.  Co.,  3  Or.  527. 

''Kendall  v.  McFarland,  4  Or.  295. 
IJannmeyer  v.  Coleman,  8  Saw.  51.     '^Pratt  v.  Cal.  Mining  Co., 

9  Saw.  367. 
Darragh  v.  Bird,  3  Or.  229.      S.  C,  Wood  v.  Fitzgerald,  3  Or. 

568. 
Davidson  v.  Phoenix  Insurance  Co.,  4  Saw.  594.     ^Thompson 

V. -Phoenix  Insurance  Co.,  11  Saw.  279. 
Dawson  v.  Coffee,  12  Or.  513.     ^Dawson  v.  Sims,  14  Or.  562. 
Day  v.  Kent,  1  Or.  123.     ''Cresap  v.  Gray,  10  Or.  348. 
De  Force  v.  Welch,  10  Or.  507.     ''Wilson  v.  Shively,  11  Or. 

219. 


590  Citations  of  Cases. 

De  Laveaga  v.  Williams,  5  Saw.  573.     '^Collinson  v.  Jackson, 

8  Saw.  363. 
Delay  v.  Chapman,  3  Or.  459.     ^Hall  v.  Russell,  3  Saw.  509; 

^Burch  V.  McDaniel,  2  W.  T.  62. 
Dennison  v.  Storey,  1  Or.  272.     ^Blanchard  v.  Bennett,  1  Or. 

330;  <^Roy  v.  Horsley,  6  Or.  271. 
Dick  V.  Hamilton,  1  Deady,  322.     ^Starr  v.  Hamilton,  1  Deady, 

280;  ^Manning  v.  Hay  den,  5  Saw.  378;  '^United  States  v. 

Griswold,  7  Saw.  329. 
Dick  V.  Wilson,  10  Or.  490.     ^N.  P.  T.  Co.  v.  City  of  Portland. 

14  Or.  27. 
Dolan  V.  Barnard,  5  Or.  390.     '^Mayer  v.  Cahalin,  5  Saw.  359; 

^The  Glaramara,  8  Saw.  27;  ^State  v.  Wright,  14  Or.  370; 

^David  V.  Portland  Water  Co.,  14  Or.  111. 
Dolph  V.  Barney,  5  Or.  191.     ^S.  C,  97  U.  S.  652;  ^Hill  v. 

Cooper,  6  Or.  187;  ^Scheland  v.  Erpelding,  6  Or.  262 

^Ramsey  v.  Loomis,  6  Or.  378;  "^Love  v.  Love,  8  Or.  27 

^McRae  v.  Daviner,  8  Or.  65;  ^Farris  v.  Hayes,  9  Or.  83 

*^Abraham   v.   Chenoweth,  9   Or.  355;  ^Tenney  v.  Mul- 

vaney,  9  Or.  410;  ^Cutting  v.  Cutting,  6  Saw.  398. 
Dolph  V.  Nickum,  2  Or.  202.     ^Seeley  v.  Sebastian,  3  Or.  563; 

^Roy  V.  Horsley,  6  Or.  388;  ^McKay  v.  Freeman,  6  Or. 

453;  ^State  v.  McKinnon,  8  Or.  490. 
Donohoe  v.  Mariposa  Land   Co.,  5  Saw.   163.     '^Leonard  v. 

Grant,  6  Saw.  603. 
Doscher  v.  Blackiston,  7  Or.  403.     ^Brooks  v.  Ankeny,  7  Or. 

466. 
Douglas  County  Road  Co.  v.  Abraham,  5  Or.  318.     ^Road  Co. 

V.   Douglas  County,   5   Or.    374;   *^Road  Co.  v.   Douglas 

County,  6  Or.  300;  ^Road  Co.  v.  Douglas  County,  5  Or. 

406;  ^Douglas  County  Road  Co.  v.  Canyonville  &  G.  R. 

Co.,  8  Or.  102;  ^C.  &  G.  Road  Co.  v.  Stephenson,  8  Or. 

263;  ^State  v.  Douglas  County  Road  Co.,  10  Or.  199. 
.Douglas  County  Road  Co.  v.  Canyonville  and  Galesville  Road 

Co.,  8  Or.  102;  ^Oregon  Railway  Co.  v.  Portland,  9  Or. 

237. 
Dove  V.  Hayden,  5  Or.  500.     ^Burrage  v.  B.  G.  &  Q.  M.  Co., 

12  Or.  173. 
Dowell  V.  Griswold,  5  Saw.  39.     ^Hambleton  v.  Duham,  10 

Saw.  490. 


Citations  of  Cases.  691 

Driver  v.   McAllister,   1   W.   T.   367.     ^Minard  v.   Douglas 

County,  9  Or.  209. 
Duncan  v.  Thomas,  1  Or.  314.     ^Haizletti  v.  Lake,  1  Deady, 

472. 
Dundee  Mortgage  etc.  Co.  v.  Cooper,  11  Saw.  501.     <^Hickox 

Elliott,  11  Saw.  642. 
Dundee   Mortgage  etc.   Co.  v.   School   District,   10   Saw.   52. 
^Crawford  v.  Linn  County,  11  Or.  482;  ^Dundee  Mort- 
gage etc.  Co.  V.  Parrish,  11  Saw.  95. 
Durham  v.  Monumental  Silver  Mining  Co.,  9  Or.  41.     ^Haber- 
sham V.  Sears,  11  Or.  434. 
Eagle  Woolen  Mills  Co.  v.  Monteitb,  2  Or.  277.     *=St.  Helen 
Mill  Co.,  In  re,  3  Saw.  90;    ^Mickey  v.  Stratton,  5  Saw. 
479. 
East  Portland  v.  Multnomah  County,  6  Or.  62.     ^Multnomah 

County  V.  Sliker,  10  Or.  65. 
Ebey  v.  Engle,  1  W.  T.  72.     «Bagley  v.  Carpenter,  2  W.  T.  19. 
Edmondson  v.  Hyde.  2  Saw.  205.     ^Lloyd  v.  Hoo  Sue,  5  Saw. 

77. 
Eliza  Ladd,  The,  3  Saw.  519.     ''The  Revenue  Cutter  No.  2, 
4  Saw.  152;    ^City  of  Salem,  7  Saw.  479;    ^Yarnberg  v. 
Watson,  13  Or.  13. 
Estes,  In  re,  6  Saw.  459.     ^United  States  v.  Griswold,  7  Saw. 
331;  ^Collinson  v.  Jackson,  8  Saw.  365;  ^Kahn  v.  Salmon, 
10  Saw.  192;  ^Hickox  v.  Elliott,  11  Saw.  653. 
Ethridge  v.  Jackson,  2  Saw.  598.     ^'Neflf  v.  Pennoyer,  3  Saw. 

336. 
Evans  v.  Christian,  4  Or.  375.    ''Sellers  v.  Corvallis,  5  Or.  275; 
^State  v.  McKinnon,  8  Or.  492;  tPrickett  v.  Cleek,  13  Or. 
417;  ^'Ramsey  v.  Pettengill,  14  Or.  208. 
Evarts  v.  Steiger,  5  Or.  147.     ^McCoy  v.  Bayley,  8  Or.  198. 
J>hie  V.  Lindsay,  8  Or.  474.     ^Besser  v.  Joyce,  9  Or.  316; 

"O'Leary  v.  Fargher,  11  Or.  225. 
Farnum  v.  Loomis,  2  Or.  29.     ^Whiteaker  v.  Vanschoiack,  5 

Or.  118;  '^Snider  v.  Lehnherr,  5  Or.  388. 
Fassman  v.  Bauragartner,  3  Or.  469.     ^State  v.  McKinnon,  8 

Or.  486. 
Favorite,  The,  3  Saw.  405.    ^The  Canada,  7  Saw.  187. 
Felger  v.  Robinson,  3  Or.  455.     ^Shaw  v.  Oswego  Iron  Co.,  10 
Or.  382. 


592  Citations  of  Cases. 

Fideliter,  The,  v.  United  States,  1  Saw.  153.  tDowell  v.  Port- 
land, 13  Or.  267. 

Field  V.  Columbet,  4  Saw.  523.  ^Lambert  v.  Smith,  9  Or. 
191. 

Fields  V.  Lamb,  1  Deady,  430.  ^Goodenough  v.  Warren,  5 
Saw.  497. 

Field  V.  Lownsdale,  1  Deady,  288.  ^Fields  v.  Lamb,  1  Deady, 
431;  ^Goodenough  v.  Warren,  5  Saw.  497;  ^Mining  De- 
bris Case,  8  Saw.  639;  ^N.  P.  T.  Co.  v.  Lowenberg,  9 
Saw.  353;  ^Goldsmith  v.  Gilliland,  10  Saw.  619. 

Fields  V.  Squires,  1  Deady,  366.  ^Lamb  v.  Starr,  1  Deady, 
452;  "^Lambv.  Wakefield,  1  Saw.  256;  *^Mizner  v.  Vaughn, 
2  Saw.  273;  '^Fitzpatrick  v.  Dubois,  2  Saw.  439;  ^Hall  v. 
Russell,  3  Saw.  513;  ^Wythe  v.  Haskell,  3  Saw.  578; 
^Wythe  V.  Smith,  4  Saw.  26;  *^Semple  v.  Bank  of  British 
Columbia,  5  Saw.  398;  *^ Alexander  v.  Knox,  6  Saw.  57; 
*^Stevens  v.  Sharp,  6  Saw.  117;  *^Bear  v.  Luse,  6  Saw.  154; 
^United  States  v.  Tichenor,  8  Saw.  149;  ^Traver  v.  Tribou, 
8  Saw.  516;  '-Shively  v.  Welch,  10  Saw.  143. 

Fink  V.  Canyon  Road  Co.,  5  Or.  301.  ^Luse  v.  Isthmus  Tran- 
sit R.  R.  Co.,  6  Or.  131;  ^Philomath  College  v.  Hartless, 
6  Or.  162. 

Finley  v.  Page,  8  Or.  45.     ^State  v.  Clark,  9  Or.  469. 

Fisk  V.  Henarie,  13  Or.  156.     ^S.  C,  14  Or.  32. 

Fitzpatrick  v.  Dubois,  2  Saw.  434.  ^Ramsey  v.  Loomis,  6  Or. 
378. 

Fleischner  v.  Chadwick,  5  Or.  152.  ^Grant  County  v.  Sels, 
5  Or.  246;  ''Dolan  v.  Barnard,  5  Or.  393;  <=The  Glaramara, 
8  Saw.  27;  ^Stingle  v.  Nevel,  9  Or.  63;  ^Mayer  v.  Caha- 
lin,  5  Saw.  358. 

Ford  V.  Kennedy,  1  Or.  166.  ^White  v.  Allen,  3  Or.  Ill; 
^■Newton  v.  Spencer,  3  Or.  548;  ^Lamb  v.  Starr,  1  Deady, 
361;  ^Fields  v.  Squires,  1  Deady,  376;  ^Dalles  City  v. 
Missionary  Society,  6  Saw.  141. 

Fordice  v.  Rinehart,ll  Or.  208.  ^Prescott  v.  Heilner,  13  Or. 
202;  ^Guille  v.  Wong  Fook,  13  Or.  585. 

Frary  v.  Wheeler,  4  Or.  190.     ^Ha  ;s  v.  Sedlak,  9  Or.  465. 

French  v.  Edwards,  4  Saw.  125.     ^Elliott  v.  Teal,  5  Saw.  190. 

Frush  V.  East  Portland,  6  Or.  281.  ^N.  P.  L.  &  M.  Co.  v.  East 
Portland,  14  Or.  7. 


Citations  of  Cases.  593 

Gager  v.  Henry,  5  Saw.  237.     ^Holmes  v.  0.  &  C.  R.  R.  Co.,  6 

Saw.  285;  ^Sprigg  v.  Stump,  7  Saw.  292;  '^Goldsmith  v. 

Gilliland,  10  Saw.  613;  <^Wright  v.  Edwards,  10  Or.  303; 

*^Walker  v.  Goldsmith,  14  Or.  143. 
Galpin  v.  Page,  3  Saw.  93.     ^S.  C,  18  Wall.  350;  ^Odell  v. 

Campbell,  9  Or.  300;  ^Northcut  v.  Lemery,  8  Or.  323;. 

'^Severns  v.  Gerke,  3  Saw.  366. 
Gammons  v.  Holman,  11  Or.  284.     ^Kahn  v.  Salmon,  10  Saw.. 

-  193.     ^ 
Gant  V.  Drew,  1  Or.  35.     ^Mills  v.  Learn,  2  Or.  215;  ^Becklejr 

V.  Learn,  3  Or.  545. 
Garrett  v.  Clark,  5  Or.  464.     ^Williams  v.  Ackerman,  8  Or, 

406. 
Garrison  v.  Portland,  2  Or.  123.     '^Portland  v.  Kamm,  5  Or. 

368. 
Giant  Powder  Co.  v.  California  V.  P.  Co.,  6  Saw.  508;  ^Giant 

P.  Co.  V.  Nitro  P.  Co.,  10  Saw.  24. 
Glaze  V.  Whitely,  5  Or.  164.     «Sheppard  v.  Yocum,  10  Or.  413. 
Glenearne,  The,  7  Saw.  200.     ^The  Glaramara,  8  Saw.  24; 

^Neil  V.  Wilson,  14  Or.  413;  ^The  Abercorn,  11  Saw.  531. 
Goodall  V.  State,  1  Or.  333.     'State  v.  Doty,  5  Or.  495;  ^State 

V.  Whitney,  7  Or.  392. 
Goodenough   v.  Warren,   5  Saw.  494.     '^The  Mining  Debris 

Case,  8  Saw.  638;  ^Manaudas  v.  Mann,  14  Or.  452. 
Goodman  v.  Myrick,  5  Or.  65.     ^Weiss  v.  Oregon  Iron  and 

Steel  Co.,  13  Or.  497. 
Goodwin  v.  Morris,  9  Or.  322.     ^Parker  v.  :Metzger,  12  Or.  409.. 
Gove  V.  Moses,  1  W.  T.  9.     ^Page  v.  Rodney,  2  W.  T.  463. 
Grangers'  Market  Co.  v.  Vinson,  6  Or.  172.     ^Coyote  G.  &  S. 

M.  Co.  V.  Ruble,  8  Or.  297;  ^Kelly  v.  Ruble,  11  Or.  105. 
Grant  v.  Baker,  12  Or.  329.     *^Scott  v.  0.  R.  &  N.  Co.,  14  Or. 
^    221. 
Grant  County  v.  Sels,  5  Or.  243.     'Dolan  v.  Barnard,  5  Or. 

393;  ^Stingle  v.  Nevel,  9  Or.  63;  ^State  v.  Brown,  10  Or. 

226;   ^Mayer  v.  Cahalin,  5  Saw.  358;   ''The  Glaramara, 

8  Saw.  27. 
Griswold  v.  Stoughton,  2  Or.  61;  ''Dolph  v.  Barney,  5  Or.  211; 

^Bank  of  British  Columbia  v.  Page,  7  Or.  455. 
Groslouis  v.  Northcut,  3  Or.  394.     '^Northcut  v.  Lemery,  8  Or. 

319. 

Or.  Dig.— 38 


694  Citations  of  Cases. 

Hackett  v.  Wilson,  12  Or.  25.  ^Hackett  v.  Multnomah  R'y 
Co.,  12  Or.  127. 

Hall  V.  Austin,  1  Deady,  104.  ^Bank  of  British  North  Amer- 
ica V.  Ellis,  6  Saw.  98. 

Hall  V.  Russell,  3  Saw.  506.  ^S.  C,  111  U.  S.  503;  «Farris  v. 
Hayes,  9  Or.  83;  ^Town  v.  De  Haven,  5  Saw.  154;  ^Man- 
ning V.  Hayden,  5  Saw.  379;  ^Stevens  v.  Sharp,  6  Saw. 
115;  ^Stubblefield  v.  Menzies,  8  Saw.  43;  ^United  States 
V.  Tichenor,  8  Saw.  149;  ^Traver  v.  Tribou,  8  Saw.  515; 
^Hickox  V.  Elliott,  10  Saw.  423. 

Hall  V.  linger,  4  Saw.  672.  '^Parkhurst  v.  Hosford,  10  Saw. 
411. 

Hallock  V.  City  of  Portland,  8  Or.  29.  ^State  v.  Mackey,  12 
Or.  156;  ^Kearney  v.  Snodgrass,  12  Or.  315. 

Halverston  v.  Nisen,  3  Saw.  562.     ^The  Chandos,  6  Saw.  548. 

Hanson  v.  Fowle,  1  Saw.  539.     <^The  Oriflamme,  3  Saw.  404. 

Harker  v.  Fahie,  2  Or.  89.  ^White  v.  Northwest  Stage  Co.,  5 
Or.  102. 

Harris  v.  Miller,  6  Saw.  319.  ^Ye  Seng  Co.  v.  Corbett,  7  Saw. 
375. 

Hartigan  v.  Territory,  1  W.  T.  447.  ^Leonard  v.  Territory,  2 
W.  T.  395. 

Hatch  V.  Wallamet  Iron  Bridge  Co.,  7  Saw.  127.  '^Hughes 
V.  N.  P.  R.  R.  Co.,  9  Saw.  319;  ^Mining  Debris  Case,  9 
Saw.  516;  see  W.  I.  B.  Co.  v.  Hatch,  9  Saw.  643;  ^Card- 
well  V.  American  R.  Bridge  Co.,  9  Saw.  663;  ^Scheerer  v. 
Columbia  St.  Bridge  Co.,  11  Saw.  577. 

Hatcher  v.  Briggs,  6  Or.  31.    ^Walker  v.  Goldsmith,  14  Or.  141. 

Hawes  v.  Costa  Rica  Water  Co.,  5  Saw.  287;  ^^Reclamation 
Dist.  V.  Hager,  6  Saw.  570. 

Hayner  v.  Stanly,  8  Saw.  214.  ^Pac.  Coast  M.  &  M.  Co.  v. 
Spargo,  8  Saw.  647. 

Heath  v.  GHsan,  3  Or.  64.     ^Boydston  v.  Giltner,  3  Or.  124. 

Heathcrly  v.  Hadley,  2  Or.  269.  See  4  Or.  1;  ^Wythe  v.  City 
of  Salem,  4  Saw.  89. 

Heatherly  v.  Hadley,  4  Or.  1.  ^Murray  v.  Murray,  6  Or.  24; 
^Northcut  V.  Lemery,  8  Or.  322;  ^Walker  v.  Goldsmith, 
14  Or.  142. 

Hedges  v.  Strong,  3  Or.  18.  ^Ludwick  v.  Watson,  3  Or.  257; 
^Taylor  v.  Patterson,  5  Or.  124. 


Citations  of  Cases.  595 

Hendrix  v.  Gore,  8  Or.  409.  •'Nicklin  v.  Betts  Spring  Co.,  11 
Or.  411. 

Hiawatha,  The,  5  Saw.  160.     ^The  Canada,  7  Saw.  188. 

Hickox  V.  Elliott,  10  Saw.  415.  ^Hickox  v.  Elliott,  11  Saw. 
628. 

Hill  V.  Cooper,  6  Or.  181.     <^Starr  v.  Stark,  7  Or.  510. 

Hill  V.  Cooi>er,  8  Or.  254.     "Hill  v.  Cooper,  10  Or.  153. 

Hills  V.  Homton,  4  Saw.  195.  ^McFadden  v.  Robinson,  10 
•    Saw.  400;  ^Veiss  v.  Oregon  Iron  and  Steel  Co.,  13  Or.  497. 

Hinman  v.  Warren,  6  Or.  408.     <^Parker  v.  Taylor,  7  Or.  408. 

Hobart  v.  Upton,  2  Saw.  302.  ^Goldsmith  v.  Gilliland,  10 
Saw.  613. 

Hodges  V.  Silver  Hill  Mining  Co.,  9  Or.  200.  ^Brundage  v. 
Mon.  G.  &  S.  M.  Co.,  12  Or.  324;  »Dawson  v.  CofiFey,  12 
Or.  519;  ''Dawson  v.  Sims,  14  Or.  563;  ^Hickox  v.  Elliott, 
11  Saw.  646. 

Hogan  V.  Wyman,  2  Or.  302.     ^Brown  v.  Brown,  7  Or.  299. 

Holcomb  V.  Teal,  4  Or.  352;  "Alberson  v.  Mahaffey,  6  Or. 
413;  •'State  v.  McKinmore,  8  Or.  208;  ''Pencinse  v.  Bur- 
ton, 9  Or.  179;  ^Ah  Lep  v.  Gong  Choy,  13  Or.  209. 

Holladay  v.  Patterson,  5  Or.  177.  "0.  &  C.  R.  R.  Co.  v.  Potter, 
5  Or.  231. 

Holmes  v.  Holmes,  1  Saw.  99.     ^King  v.  French,  2  Saw.  446. 

Holmes  v.  0.  &  C.  R.  R.  Co.,  6  Saw.  262.  ''The  Clatsop  Chief, 
7  Saw.  279;  ^Conroy  v.  Oregon  Con.  Co.,  10  Saw.  632. 

Holmes  v.  0.  &  C.  R.  R.  Co.,  7  Saw.  380.  ^Wright  v.  Ed- 
wards, 10  Or.  303. 

Hopwood  V.  Patterson,  2  Or.  49.  ''Oregon  Central  R.  R.  Co. 
V.  Wait,  3  Or.  95;  '-Derkeny  v.  Belfils,  4  Or.  259;  ^Oregon 
Central  R.  R.  Co.  v.  Scoggin,  3  Or.  162;  ^Wythe  v. 
Myers,  3  Saw.  600;  ^Oregonian  R'y  Co.  v.  0.  R.  &  N. 

^    Co.,  10  Saw.  469. 

Horrell  v.  Manning,  6  Or.  416.     ^Nicolai  v.  Lyon,  8  Or.  58. 

Howe  V.  Douglas  Co.,  3  Or.  488.    ^^Coleman  v.  Ross,  14  Or.  351. 

Howe  V.  Taylor,  6  Or.  284.  "Howe  v.  Taylor,  9  Or.  291; 
^Williams  V.  Gallick,  11  Or.  342. 

Howell  V.  State,  1  Or.  241.     ^State  v.  Fitzhugh,  2  Or.  236. 

Hoxter  v.  Poppleton,  9  Or.  481.  '^Peterson  v.  Foss,  12  Or.  82; 
^Hexter  v.  Schneider,  14  Or.  187;  ^'Crane  v.  Runey,  11 
Saw.  420. 


596  Citations  of  Cases. 

Hubbard  v.  Hubbard,  7  Or.  42.     ^Heirs  of  Clark  v.  Ellis,  9 

Or.  133. 
Hughes  V.  Northern  Pacific  R.  R.  Co.,  9  Saw.  319.     ^Miller  v. 

Wattier,  11  Saw.  82. 
Humphreys  v.  Taylor,  5  Or.  260.     '^ Aiken  v.  Aiken,  12  Or. 

206. 
Huntington  v.  Central  Pac.  R.  R.  Co.,  2  Saw.  503.     ^Tilton  v. 

0.  C.  M.  R.  Co.,  3  Saw.  24;  ^Minturn  v.  Smith,  3  Saw. 

144. 
Huntington  v.  Palmer,  7  Saw.  355.     "^Dundee  Mortgage  etc. 

Co.  V.  Parrish,  11  Saw.  335. 
Hurst  V.  Burnside,  12  Or.  520.     ^Cassida  v.  Oregon  R'y  & 

Nav.  Co.,  14  Or.  558. 
Hurst  V.  Hawn,  5  Or.  275.     ''Grant  County  v.  Sels,  5  Or.  246; 

^Mayer  v.  Cahalin,  5  Saw.  358. 
Ison,  In  re,  Claim  of,  6  Or.  465.    ^Hazard's  Appeal,  9  Or.  367. 
Jackson  v.  Siglin,  10  Or.  93.     *^Coleman  v.  Ross,  14  Or.  351. 
Jacobs  V.  Ervin,  9  Or.  52.     '^Kahn  v.  Salmon,  10  Saw.  193; 

^Bremer  v.  Fleckenstein,  9  Or.  273. 
Jacobs  V.  McCalley,  8  Or.  124.     ^Jacobs  v.  Ervin,  9  Or.  56; 

^Bremer  v.  Fleckenstein,  9  Or.  273;  ''Sears  v.  Abrams,  10 

Or.  503. 
Jettie  V.  Picard,  4  Or.  296.     ^Coulson  v.  Holmes,  5  Saw.  281. 
Johns  V.  Marion  County,  4  Or.  46.    ^State  v.  Officer,  4  Or.  183; 

^Fustin  V.  Gaunt,  4  Or.  307;  ^Canyonville  &  G.  Road  Co. 

V.  Douglas  County,  5  Or.  285;  ^Monastes  v.  Catlin,  6  Or. 

121. 
Johnson  v.  City  Council  of  Oregon  City,  2  Or.  327.     S.  C,  3 

Or.  13;  lAnkeny  v.  Multnomah  County,  3  Or.  386;  ^An- 

keny  v.  Multnomah  County,  3  Or.  388;  "^Ankeny  v.  Mult- 
nomah County,  4  Or.  277. 
Jones  V.  Dove,  6  Or.  188.     ^Hubbard  v.  Hubbard,  7  Or.  44; 

^Jones  v.  Dove,  7  Or.  471;  ^Heirs  of  Clark  v.  Ellis,  9  Or. 

132. 
Jones  V.  Oregon  Central  R'y  Co.,  3  Saw.  523.     *^Heirs  of  Clark 

V.  Ellis,  9  Or.  134. 
Jupiter  Mining  Co.  v.  Bodie  Con.  M.  Co.,  7  Saw.  96.     ^Lakin 

V.  Buttes  G.  M.  Co.,  11  Saw.  241. 
Kahn  v.  Salmon,  10  Saw.  196.     ^Dawson  v.  Sims,  14  Or.  563. 
Kamm  v.  Holland,  2  Or.  59.     ^Barr  v.  Mitchell,  7  Or.  354. 


Citations  of  Cases.  597 

Kamm  v.  Stark,  1  Saw.  547.     ^Bush  v.  United  States,  8  Saw. 

327. 
Kearney  v.  Snodgrass,  12  Or.  311.     ''State  v.  Becker,  12  Or. 

319;  ^Breon  v.  Ilenklc,  14  Or.  514. 
Keith  V.  Cheney,  1  Or.  285.     ^Willamette  County  v.  Gordon, 

6  Or.  177. 
Kelly  V.  Ruble,  11  Or.  75.     ^Gee  v.  McMillan,  14  Or.  275. 
Kennedy  v.  Sacramento,  10  Saw.  29.     *^IIaumeister  v.  Porter, 

10  Saw.  281. 
Kielley  v.  Belcher  Silver  M.  Co.,  3  Saw.  500.     ^Buckley  v. 

Gould  and  Curry  S.  M.  Co.,  8  Saw.  400;  ^Bunt  v.  Sierra 

Butte.s  Gold  Mining  Co.,  11  Saw.  181. 
Kirk  V.  Matlock,  12  Or.  319.     ^Moorhouse  v.  Donica,  14  Or. 

439. 
Knaresborough  v.  Belcher  S.  M.  Co.,  3  Saw.  446.     ""Conroy  v. 

Oregon  Construction  Co.,  10  Saw.  632. 
Knott  V.  Frush,  2  Or.  237.     ^Beckley  v.  Learn,  3  Or.  546; 

^Montgomery  v.  Multnomah  R'y  Co.,  11  Or.  353;  «Hack- 

ett  V.  Wilson,  12  Or.  37. 
Knott  V.  Shaw,  5  Or.  482.     ^State  v.  Munds,  7  Or.  82. 
Knowles  v.  Herbert,  11  Or.  54,     S.  C,  11  Or.  240;  ^Williams 

V.  Gallick,  11  Or.  339;  ^Case  T.  M.  Co.  v.  Campbell,  14 

Or.  465. 
Knox  V.  Great  Western  Q.  M.  Co.,  3  Saw.  422.     ^S.  C,  6  Saw. 

439. 
Koch  V.  The   Oriflamme,  3   Saw.  397.     ^Plielps   v.  City  of 

Panama,  1  W.  T.  535. 
Ladd  V.  Cartwright,  7  Or.  329.     ^Hodges  v.  Silver  Hill  M.  Co., 

9  Or.  202;  ^Brundage  v.  Mon.  G.  &  S.  M.  Co.,  12  Or.  324; 

*Faull  V.  Alaska  G.  &  S.  M.  Co.,  8  Saw.  423. 
Ladd  V.  Iligley,  5  Or.  296.     ^Northcut  v.  Lemery,  8  Or.  322. 
Xadd  V.  Mason,  10  Or.  308.     <^Hovenden  v.  Knott,  12  Or.  269. 
Lafayette  v.  Clark,  9  Or.  225.     ^Corvallis  v.  Stock,  12  Or.  391. 
Lamb  V.  Burbank,  1  Saw.  227.     "^Lamb  v.  Kamm,  1  Saw.  242; 

^Lamb  v.  Wakefield,  1  Saw.  258;  ^Traver  v.  Baker,  8  Saw. 

541. 
Lamb  v.  Davenport,  1  Saw.  609.       S.  C,  13  Wall.  317;  ^Dolph 
'v.  Barney,  5  Or.  202;  ^Parker  v.  Rogers,  8  Or.  188;  ^Wil- 
son V.   Shively,   10  Or.   269;  ^Lamb  v.  Vaughn,  2  Saw. 

165;  JStarr  v.  Stark,  2  Saw.  637;  ^Meeks  v.  Vassault,  3 


598  Citations  of  Cases. 

Saw.  217;  ^Wythe  v.  Haskell,  3  Saw.  578;   <^Semple  v. 

Bank,  5  Saw.  398;  '^Cutting  v.  Cutting,  6  Saw.  404;  ^San- 
ger V.  Sargent,  8  Saw.  94;  ^Traver  v.  Tribou,  8  Saw.  516; 

^Proebstel  v.  Hogue,  8  Saw.  597;  ^Mining  Debris  Case,  9 

Saw.  533. 
Lamb  v.  Kamm,  1  Saw.  238.     ^Traver  v.  Baker,  8  Saw.  538. 
Lamb  v.  Starr,  1  Deady,  350.     *^Taylor  v.  Patterson,  5  Or.  124; 

^Fields  V.  Squires,  1  Deady,  376;  ^Newley  v.  Oregon  Cent. 

R.  R.  Co.,  1  Saw.  67;  ^'Mizner  v.  Vaughn,  2  Saw.  273; 

*^Wythe  V.  Haskell,  3  Saw.  578;  ^'Semple  v.  Bank  of  British 

Columbia,  5  Saw.  398;  ^'Stevens  v.  Sharp,  6  Saw.  117; 

<^Cutting  V.  Cutting,  6  Saw.  404;  <^United  States  v.  Tich- 

enor,  8  Saw.  149;  *^Green  v.  Coos  Bay  Wagon  R.  Co.,  10 

Saw.  629. 
Lamb  v.  Wakefield,  1  Saw.  251.     ^'Semple,  v.  Bank  of  British 

Columbia,  5  Saw.  398;  Traver  v.  Tribou,  8  Saw.  540. 
Latshaw  v.  Territory  of  Oregon,  1  Or.  140.     ^Smith  v.  United 

States,  1  W.  T.  273. 
Laundry  Ordinance  Case,  7  Saw.  526.     ^In  re  Wan  Yin,   10 

Saw.  536;  *In  re  Wo  Lee,  11  Saw.  429. 
Lee  V.  Summers,  2  Or.  260.     ''Blakesley  v.  Caywood,  4  Or. 

288;  ^Dolph  v.  Barney,  5  Or.  201. 
Lee  Tong,  In  re,  9  Saw.  333.     ''In  re  W\an  Yin,  10  Saw.  538; 

^Ex  parte  Ah  Lit,  11  Saw.  448;  ^Ex  parte  Hanson,  11 

Saw.  661. 
Leong  Yick  Dew,  In  re,  10  Saw.  38.     *^Ah  Quan,  In  re,  10  Saw. 

22;  ^In  re  Chew  Heong,  10  Saw.  376. 
Leroy  v.  Jamison,  3  Saw.  369.     ^ Wythe  v.  Haskell,  3  Saw. 

578. 
Leschi  v.  Territory,  1  W.  T.  13.     ^Shapoonmash  v.  United 

States,  1  W.  T.  191;  <^Lytle  v.  Territory,  1  W.  T.  444. 
Lewis  V.  Lewis,  4  Or.  177.     ^Raymond  v.  Coffee,  5  Or.  135; 

'^Ramsey  v.  Loomis,  6  Or.  374;  ^ Weiss  v.  Oregon  Iron  and 

Steel  Co.,  13  Or.  497. 
Lewis  V.  Lewis,  4  Or.  209.     ''Christian  v.  Evans,  5  Or.  254; 

^ Weiss  V.  Jackson  County,  8  Or.  529;  ^Neppach  v.  Jor- 
dan, 13  Or.  247;  ^Lancaster  v.  McDonald,  14  Or.  266. 
Liebman   v.  San   Francisco,   11    Saw.   147.     *^Rosenbaum   v. 

Board  of  Supervisors,  11  Saw.  621. 
Lindley  v.  Wallis,  2  Or.  203.    ''Can  v.  Hurd,  3  Or.  160;  ^See- 


Citations  of  Cases.  599 

ley  V.  Sebastian,  3  Or.  565;  ''Rees  v.  Rees,  7  Or.  80;  ^Pop- 

pleton  V.  Nelson,  10  Or.  439. 
Live  Yankee,  The,  1  Deady,  420.    ^The  Oriflamme,  1  Saw.  181. 
Long  V.  Sharp,  5  Or.  438.     ^State  v.  McKinnon,  8  Or.  44G. 
Lord  V.  Brown,  7  Or.  302.     nVagonblast  v.  Whitney,  12  Or.  89. 
Lord  V.  Goodall,  4  Saw.  292.     '^Armstrong  v.  Beadle,  5  Saw. 

487. 
Love  V.  Love,  8  Or.  23.     ^Farris  v.  Hayes,  9  Or.  83. 
Lownsdale  v.  Portland,  1  Or.  381.     S.  C,  1  Deady,  1;  <=IIall  v. 

Austin,   1  Deady,  107;  ^Chapman  v.  School  District,  1 

Deady,  112;  ^Chapman  v.  School  District,  1  Deady,  1G3; 

^Stark  v.  Starr,  1  Saw.  17;  ^Lamb  v.  Davenport,  1  Saw. 

620;  ^Town  v.  De  Haven,  5  Saw.   149;   ^Dalles  City  v. 

Missionary  Society,  6  Saw.  141;  ^Bear  v.  Luse,  6  Saw. 

154;  ^United  States  v.  Tichenor,  8  Saw.  151;  ^Myers  v. 

Reed,  9  Saw.  139;  ^Shively  v.  Welch,  10  Saw.  143;  ^Cof- 
fin V.  Portland,  11  Saw.  607. 
Low  Yam  Chow,  In  re,  7  Saw.  546.     ^In  re  George  Moncan,  8 

Saw.  354;  ^In  re  Ho  King,  8  Saw.  447. 
Luhrs  V.  Sturtevant,  10  Or.  170.     ^ Walts  v.  Foster,  12  Or. 

249. 
Luse  V.  Luse,  9  Or.  149.     ^Lancaster  v.  McDonald,  14  Or.  266. 
Mack  v.  Salem,  6  Or.  275.     ^Heilner  v.  Union  County,  7  Or. 

65. 
MacNaughton  v.  South  Pacific  Coast  R.  R.  Co.,  10  Saw.  111. 

'^Endey  v.  Commercial  Fire  Insurance  Co.,  11  Saw.  139; 

^Theurkauf  V.  Ireland,  11  Saw.  513. 
Mahoney  Mining  Co.  v.  Bennett,  4  Saw.  289.     ^C.  &  S.  Bank 

etc.  V.  Corbett,  5  Saw.  174;  ^Portland  v.  Oregonian  R'y 

Co.,  7  Saw.  124. 
Mallory,  In  re,  1  Saw.  88.     ^Catlin  v.  Hoffman,  2  Fvaw.  493. 
JSIanning  v.  Ilayden,  5  Saw.  360.     ^Stevens  v.  Sharp,  6  Saw. 

115;  ^Traver  v.  Tribou,  8  Saw.  515;  ^Hickox  v.  Elliott, 

10  Saw.  423;  '^Lakin  v.  Sierra  Buttes  G.  M.  Co.,  11  Saw. 

243. 
Manning  v.  Klippel,  9  Or.  367.     ^Lane  v.  Coos  County,  10  Or. 

124;  'Crawford  v.  Linn  County,  11  Or.  498;  ^Dundee  etc. 

Co.  v.  School  District,  10  Saw.  69. 
Planning  v.  Montgomery,  1  W.  T.  434.     ''Garrison  v.  Cheeney, 

1  W.  T.  493. 


600  Citations  of  Cases. 

Manning  v.  San  Jacinto  Tin  Co.,  7  Saw.  418.     ^Dannemeyer 

V.  Coleman,  8  Saw.  58;  ^United  States  v.  White,  9  Saw. 

127;  ^Pratt  v.  California  Mining  Co.,  9  Saw.  367;  ^United 

States  V.  San  Jacinto  Tin  Co.,  10  Saw.  641. 
Mariposa   County  v.    Bowman,    1    Deady,    228.      ^Hendy  v. 

Soule,  1  Deady,  403. 
Marlin  v.  T'Vault,  1  Or.  77.     ^Lamb  v.  Davenport,  1  Saw.  620. 
Marsh  v.  Trullinger,  6  Or.  356.     ^Ankeny  v.  Fairview  M.  Co., 

10  Or.  401. 
Matthews  v.  Eddy,  4  Or.  225.     ^Ramsey  v.  Loorais,  6  Or.  374; 

^McRae  v.  Daviner,  8  Or.  65. 
Mayer  v.  Cahalin,  5  Saw.  355.     ^The  Glaramara,  8  Saw.  27. 
McCalla   v.    Multnomah   County,   3   Or.   424.     ^Sheridan   v. 

Salem,  14  Or.  334. 
McCormick  v.  Walla  Walla  &  Columbia  -R.  R.  Co.,  1  W.  T. 

512.     '^N.  P.  R.  R.  Co.  V.  Wells,  Fargo,  &  Co.,  2  W.  T.  306. 
McDonald  v.  Cruzen,  2  Or.  259.     ^Powell  v.  D.  S.  &  G.  R.  R. 

Co.,  14  Or.  23. 
McEwan  v.  Portland,  1  Or.  154.     Chapman  v.  School  Dis- 
trict, 1  Deady,  154. 
McGowan  v.  Pettit,  1  W.  T.  514.     ^Seattle  etc.  R.  R.  v.  Ah 

Kow,  2  W.  T.  239. 
McKay  v.  Campbell,  2  Saw.  118.     ^Town  v.  De  Haven,  5  Saw. 

148;  ^United  States  v.  Osborne,  6  Saw.  409. 
McKay  v.  Freeman,  6  Or.  449.     ""Love  v.  Love,  8  Or.  28;  ^State 

V.  McKinnon,  8  Or.  492;  ''Farris  v.  Hayes,  9  Or.  83;  <^ Weiss- 
man  V.  Russell,  10  Or.  74. 
McLaughlin  v.  Hoover,  1  Or.  31.    -'^Ketchum  v.  State,  2  Or. 

106. 
Merriiuac,  The,  2  Saw.  586.     <^'The  Allegiance,  6  Saw.  75. 
Mickey  v.  Stratton,  5  Saw.  475.     ^Rickards  v.  Ladd,  6  Saw. 

45. 
Miller  v.  Oregon  City  Paper  Mfg.  Co.,  3  Or.  24.     ^Miller  Bros. 

V.  Bank  of  British  Columbia,  2  Or.  291. 
Miles  V.  Miles,  6  Or.  266.     ^Walker  v.  Goldsmith,  7  Or.  181. 

]\Iills  V.  Learn,  2  Or.  215.     ^Beckley  v.  Learn,  3  Or.  544; 

^Price  V.  Knott,  8  Or.  443. 
Minard   v.    Douglas   County,  9   Or.    206.     ^King   v.    Benton 

County,  10  Or.  513;  ^Bums  v.  Multnomah  R.  R.  Co.,  8 

Saw.  550. 


Citations  of  Cases.  GOl 

Mining  Debris  Case,  The,  9  Saw.  441.     ^Cardwcll  v.  American 

R.  Bridge  Co.,  9  Saw.  6G5;  ^liardt  v.  Liberty  Hill  C.  M. 

&  W.  Co.,  11  Saw.  615. 
Minto  V.  Delaney,  7  Or.  337.     *^Weiss  v.  Oregon  Iron  and  Steel 

Co.,  13  Or.  497. 
Mizner  v.  Vaughn,  2  Saw.  269.     ^Wythe  v.  Haskell,  3  Saw. 

578;  ^Bear  v.  Luse,  6  Saw.  154. 
Moncan,  In  re,  8  Saw.  350.     'In  re  Ho  King,  8  Saw.  440. 
Montgomery  v.  Bevans,  1  Saw.  653.     ^Harris  v.  McGovern,  2 

Saw.  517;  ^Leroy  v.  Carroll,  3  Saw.  67. 
Moore  v.  Floyd,  4  Or.  101.   ^McCully  v.  Swackhamer,  6  Or.  440. 
Moore  v.  Floyd,  4  Or.  260.     ^Inverarity  v.  Stowell,  10  Or.  266. 
Moore  v.  Fuller,  6  Or.  272.     ^Gray  v.  Holland,  9  Or.  515. 
Moore  v.  Packwood,  5  Or.  325.     ^McWhirter  v.  Brainard,  5 

Or.  430. 
Moore  v.  Thomas,  1  Or.  201.     <=McIntyre  v.  Kamm,  12  Or. 

259;  '-Goodenough  v.  Warren,  5  Saw.  498. 
Moorhouse  v.  Donica,  13  Or.  435.     ^Lancaster  v.  McDonald? 

14  Or.  266. 
Mora  V.  Foster,  3  Saw.  469.     ^Mora  v.  Nunez,  7  Saw.  464;  and 

see  Foster  v.  Mora,  98  U.  S.  425. 
Moser  v.  Jenkins,  5  Or.  447.     ^Miller  v.  Tobin,  9  Saw.  408; 

^'Surles  V.  Sweeney,  11  Or.  23;  ''Guille  v.  Wong  Fook,  13 

Or.  585. 
Mountain   v.    Multnomah    County,   8   Or.   474.     ^Crossen   v. 

Wasco  County,  10  Or.  116;  ^Vincent  v.  Umatilla  County, 

14  Or.  380. 
Mulkey  v.  IMcGrew,  2  W.  T.  259.     ^Puget  S.  I.  Co.  v.  Worth- 

ington,  2  W.  T.  480. 
Multnomah  County  v.  State,   1  Or.  358.     ''Gilliam  County  v. 

Wasco  County,  14  Or.  525. 
J^Iumford  v.  Sewall,  11  Or.  67.     ^Crawford  v.  Linn  County,  11 

Or.  484;  ^Dundee  etc.  Co.  v.  School  District,  10  Saw.  60; 

^Dundee  etc.  Co.  v.  Parrish,  11  Saw.  95. 
Murch  V.  Moore,  2  Or.  189.     '^Dearborn  v.  Patton,  3  Or.  423; 

''Strong  V.  Barnhart,  5  Or.  499. 
Murray  v.  Oliver,  3  Or.  539.     ^Southwell  v.  Beezley,  5  Or.  462. 
Musgrove  v.  Bonser,  5  Or.  313.     '^Fleischner  v.  Sumpter,  12 

Or.  167;  '^Goodenough  v.  Warren,  5  Saw.  501;  •'Manaudas 

V.  Mann,  14  Or.  452. 


602  Citations  of  Cases. 

Myer  v.  Beal,   5  Or.   130.     ^Goodwin  v.  Morris,  9  Or.  324; 

^Gray  v.  Holland,  9  Or.  514;  ^Parker  v.  Metzger,  12  Or. 

409;  ^Hickox  v.  Elliott,  10  Saw.  422;  ^Hickox  v.  Elliott, 

11  Saw.  635. 
Neff  V.  Pennoyer,  3  Saw.  274;  S.  C,  3  Saw.  335;  3  Saw.  495; 

95  U.  S.  721.     ^Odell  v.  Campbell,  9  Or.  302;  ^Wythe  v. 

Myers,  3  Saw.  598;  '^United  States  v.  Grigwold,  5  Saw.  30; 

''Gager  v.  Henry,  5  Saw.  241;  ''Mickey  v.  Stratton,  5  Saw. 

480;  ^Holmes  v.  0.  &  C.  R.  R.  Co.,  6  Saw.  279;  ^In  re  Ah 

Lee,  6  Saw.  417;  ^Holmes  v.  0.  &  C.  R.  R.  Co.,  7  Saw. 

401;  fDowell  v.  Portland,  13  Or.  268. 
Neiss  V.  Yocum,  9  Saw.  24.     ^United  States  v.  0.  R.  &  N.  Co., 

9  Saw.  67. 
Neppach  v.  Jordan,  13  Or.  246.     ^Lancaster  v.  McDonald,  14 

Or.  267. 
Newby  v.  Oregon  Central  R'y  Co.,  1  Saw.  63.     ^Collinson  v, 

Jackson,  8  Saw.  363;  ^Wells,  Fargo,  &  Co.  v.  O.  R.  &  N. 

Co.,  8  Saw.  608. 
Newby  v.  Territory  of  Oregon,  1  Or.  163.     *^State  v.  Fitzhugh, 

2  Or.  236. 
Newsom  v.  Greenwood,  4  Or.  119.     ^Lewis  v.  Lewis,  4  Or.  179; 

^Ramsey  v.  Loomis,  6  Or.  374. 
Nichols  V.  Griffin,  1  \V.  T.  374.     ^Phelps  v.  Steamship  City  of 

Panama,  1    W.    T.    524;    "Phelps  v.  Steamship   City   of 

Panama,  1  W.  T.  615. 
Nicklin  v.  Wythe,  2  Saw.  535.     ^Rugh  v.  Ottenheimer,  6  Or. 

237. 
Norman  v.  IManciette,  1  Saw.  484.     ^United  States  v.  Grls- 

wold,  6  Saw.  257. 
Northcut  V.  Lemery,  8  Or.  316.     ^Odcll  v.  Campbell,  9  Or. 

309. 
North  Noonday  IMining  Co.  v.  Orient  Mining  Co.,  6  Saw.  299. 

'^Lakin  v.  Sierra  Buttes  Gold  Mining  Co.,  11  Saw.  241. 
Norton  v.  Meader,  4  Saw.  603.     ^Manning  v.  Hayden,  5  Saw. 

oi  8. 
Norton  v.  Winter,  1  Or.  47.     ^Despain  v.  Crow,  14  Or.  404. 
Northup  V.  The  Pilot,  6  Or.  298.     «=Yarnberg  v.  Watson,  13 

Or.  13. 
Nurse  v.  Justus,  6  Or.  75.     -^Burt  v.  Ambrose,  11  Or.  30. 
Odell  V.  Campbell,  9  Or.  298.     '^ Victor  v.  Davis,  11  Or.  447. 


Citations  of  Cases.  603 

Odell  V.  Morin,  5  Or.  90.    ^Brown  v.  Lord,  7  Or.  310;  ^Vagon- 

blast  V.  Whitney,  12  Or.  89. 
O'llarra  v.  Portland,  3  Or.  525.     *^Rankin  v.  Buckman,  9  Or. 

258. 
O'Kelly  V.  Territory,  1  Or.  51.     ^State  v.  Garrand,  5  Or.  221. 
Oliver  v.  Harvey,  5  Or.  360.     ^Volf  v.  Smith,  6  Or.  74. 
On  Chow  V.  Ilallett,  2  Saw.  259.     '^William  v.  Hallctt,  2  Saw. 

263. 
Orange  National  Bank  v.  TraTer,  7  Saw.  210.     *^Hughes  v. 

N.  P.  R.  R.  Co.,  9  Saw.  320. 
Oregon  Cascades  R.  R.  Co.  v.  O.  S.  N.  Co.,  3  Or.  178.    ^Mickey 

V.  Stratton,  5  Saw.  479. 
Oregon  Central  R.  R.  Co.  v.  Wait,  3  Or.  91.    ^■S.  C,  3  Or.  428; 

^Oregonian  R'y  Co.  v.  0.  R.  &  N.  Co.,  10  Saw.  469. 
Oregon  Iron  Co.  v.  Trullenger,  3  Or.  1.     -^S.  C,  2  Or.  311. 
Oregon  R'y  &  Nav.  Co.  v.  Gates,  10  Or.  515.     ^Baker  v.  Eglin, 

11  Or.  334. 
Oregon  R'y  &  Nav.  Go.  v.  Oregon  Real  Estate  Co.,  10  Or.  444. 

^United  States  v.  0.  R.  &  N.  Co.,  10  Saw.  65. 
Oregon  Steam  Nav.  Co.  v.  Portland,  2  Or.  81.     ^O.  S.  N.  Co.  v. 

Wasco  County,  2  Or.  213. 
Oregon  Steam  Nav.  Co.  v.  Wasco  County,  2  Or.  206.     ''Shum- 

way  v.  Baker  County,  3  Or.  248. 
Oregon  and  Washington  T.  &  I.  Co.  v.  Rathbun,  5  Saw.  32. 

^Singer  M.  Co.  v.  Graham,  8  Or.  21;  *^Semple  v.  Bank  of 

British  Columbia,  5  Saw.  94;  ^Dundee  etc.  Co.  v.  School 

District,  10  Saw.  65;  ^Oregonian  R'y  Co.  v.  0.  R.  &  N.  Co., 

10  Saw.  472. 
Oregonian  R'y  Co.  v.  Hill,  9  Or.  377.     ^Oregon  R'y  Co.  v. 

Bridwell,  11  Or.  283. 
Oregonian  R'y  Co.  v.  0.  R.  &  N.  Co.,  10  Saw.  464.     ^Dundee 

Mortgage  etc.  Co.  v.  Cooper,  11  Saw.  503;  ^Oregon  R'y  Co. 
^    v.  Or.  R'y  &  Nav.  Co.,  11  Saw.  568. 

Oregonian  R'y  Co.  v.  Wright,  10  Or.  162.     ^Ankeny  v.  Fair- 
view  Milling  Co.,  10  Or.  395;  ''Newby  v.  Rowland,  11  Or. 

134;  '^Chung  Yow  v.  Hop  Chong,  11  Or.  224.     * 
Oriflamme,  The,  3  Saw.  397.     ^Phelps  v.  City  of  Panama,  1 

W.  T.  535. 
Orton  V.  Orton,  7  Or.  478.     » Jacobs  v.  McCalley,  8  Or.  126; 

"^^ Jacobs  V.  Ervin,  9  Or.  60;  ^Bremer  v.  Fleckenstein,  9  Or. 

273. 


604  •  Citations  of  Cases. 

Osborn  v.  McBride,  3  Saw.  590.     *^Crane  v.  Morrison.  4  Saw. 

143. 
Ouimette,  In  re,  1  Saw.  47.    ^In  re  Morrill,  2  Saw.  358;  ^In  re 

Parker,  G  Saw.  250. 
Oulton  V.  Savings  Institution,  1  Saw.  G95.     S.  C,  17  Wall. 

118;  ^0.  &  W.  T.  I.  Co.  V.  Ratlibun,  5  Saw.  35. 
Pacific  Coast  Mining  and  Milling  Co.  v.  Spargo,  8  Saw.  045. 

Cowell  V.  Lammers,  10  Saw.  297. 
Pacific  Coast  Steamship  Co.  v.  Board  of  R'y  Com.,  9  Saw. 

253.     ^^Wells,  Fargo,  &  Co.  v.  N.  P.  R.  R.  Co.,  10  Saw. 

453;  ^Ex  parte  Koehler,  11  Saw.  195. 
Pacific,  The,  1  Deady,  192.     '^The  Orizaba,  1  Dcady,  196. 
Page  V.  Grant,  9  Or.  116.     ^Crawford  v.  Beard,  12  Or.  453. 
Panama,  The,  1  Or.  418.     S.  C,  1  Deady,  27;  ^In  re  Bryant, 

1  Deady,  121;  ^The  George  S.  Wright,  1  Deady,  593;  '^The 

Glenearne,  7  Saw.  202;   ^The  Ullock,  9  Saw.  641;  ''The 

Abercorn,  11  Saw.  532;  ^Neil  v.  Wilson,  14  Or.  415. 
Parker  v.  Metzger,  12  Or.  407.     ^Joy  v.  Stump,  14  Or.  363. 
Parker  v.  Monteith,  7  Or.  277.     ^Heneky  v.  Smith,  10  Or.  356; 

''Lee  V.  Cooley,  13  Or.  434. 
Parker  v.  Rogers,  8  Or.  183.     ^Shively  v.  Parker,  9  Or.  505; 

^Wilson  V.  Shively,  10  Or.  269;  ^De  Force  v.  Welch,  10 

Or.  509;  '^Wilson  v.  Welch,  12  Or.  359. 
Parkinson  v.  Laselle,  3  Saw.  330.     *^Chapman  v.  Ferry,  9  Saw. 

395. 
Parrish  v.  Stephens,  1  Or.  59;  S.  C,  1  Or.  73;  S.  C,  Lownsdale 

v.Parrish,  21  How.  113.     ^Leland  v.  Portland,  2  Or.  46; 

^White  V.  Allen,  3  Or.  113;  ^'Chapman  v.  School  Dist.  No. 

1,  1  Deady,  149;  ^Lamb  v.  Davenport,  1  Saw.  640;  <=United 

States  V.  Tichenor,  8  Saw.  151;  ^'Coffin  v.  Portland,  11  Saw. 

605. 
Parrott,  In  re,  6  Saw.  349.     ''In  re  Ah  Lee,  6  Saw.  414;  ^In  re 

Ah  Chong,  6  Saw.  451;  ^The  Railroad  Tax  Case,  8  Saw. 

286;  ^In  re  Lee  Tong,  9   Saw.  336;  ^'In  re  Wan  Yin,  10 

Saw.  538;  ^'In  re  Tie  Loy,  11  Saw.  477;  '^^In  re  Thomas 

Baldw'in,  11  Saw.  536. 
Partlow  V.  Singer,  2  Or.  307.     ^Sutherlin  v.  Roberts,  4  Or. 

387;  ''Creighton  v.  Vincent,  10  Or.  57. 
Pease  v.  Kelly,  3  Or.  417.     ^Trullinger  v.  Kofocd,  7  Or.  231; 

«Kelly  v.  Ruble,  11  Or.  92;  ''Gee  v.  INIcMillan,  14  Or.  274; 

^Coos  Bay  Wagon  Road  Co.  v.  Crocker,  6  Saw.  580. 


Citations  of  Cases.  G05 

Peyser  v.  Cole,  11  Or.  39.     ^Balfour  v.  Davis,  14  Or.  52. 

Phelps  V.  Steamship  City  of  Panama,  1  W.  T.  518.  '^May- 
nard  v.  Valentine,  2  W.  T.  15. 

Pioneer  Gold  Mining  Co.  v.  Baker,  10  Saw.  84.  ^Pioneer  Gold 
M.  Co.  V.  Baker,  10  Saw.  581. 

Pincus  V.  Light,  1  W.  T.  511.  ^Seattle  etc.  R.  R.  v.  Ah  Kow, 
2  W.  T.  39;  ^McGowan  v.  Pettit,  1  W.  T.  514. 

Pitman  v.  Pitman,  4  Or.  298.     '^Ilass  v.  Sedlak,  9  Or.  4G5. 

Pittoek,  In  re,  2  Saw.  416.     ^N.  W.  Ins.  Co.  v.  Elliott,  7  Saw. 
■   20;  ^Dowell  v.  Applegate,  7  Saw.  235;  ^United  States  v. 
Howard,  9  Saw.  158. 

Playmale  v.  Comstock,  9  Or.  318.     ^Kelly  v.  Ruble,  11  Or.  91. 

Pool  V.  Buffum,  3  Or.  348.     ^Moreland  v.  Brady,  8  Or.  312. 

Poppleton  V.  Yamhill  Co.,  8  Or.  337.  ^Dundee  etc.  Co.  v. 
School  District,  10  Saw.  74. 

Port  Blakely  Mill  Co.  v.  Clymer,  1  W.  T.  G07.  ^Blinn  v. 
Crosby,  2  W.  T.  111. 

Portland  v.  Baker,  8  Or.  356.     ^Ladd  v.  Ramsby,  10  Or.  211. 

Portland  v.  Denny,  5  Or.  160.  ^Multnomah  County  v.  Adams, 
6  Or.  115;  ^Chadwick  v.  Earhart,  11  Or.  393. 

Portland  v.  Kamm,  5  Or.  362.  /^Portland  v.  Lee  Sam,  7  Or. 
402. 

Portland  v.  Stock,  2  Or.  69.  ^Bird  v.  Wasco  County,  3  Or. 
285;  ^Fleischner  v.  Chadwick,  5  Or.  155;  'Grant  County 
V.  Sels,  5  Or.  247;  ''Dolan  v.  Barnard,  5  Or.  393;  'Mayer 
V.  Cahalin,  5  Saw.  359;  ''State  v.  Wright,  14  Or.  369. 

Powell  V.  Payton,  Sheridan,  and  Grand  Ronde  R.  R.  Co.,  13 
Or.  446.     ^Powell  v.  D.  S.  &  G.  R.  R.  Co.,  14  Or.  22. 

Pratt  V.  California  M.  Co.,  9  Saw.  354.  ^Lakin  v.  Buttes  G. 
M.  Co.,  11  Saw.  243. 

Pratt  V.  King,  1  Or.  50.     «Keyes  v.  Mooney,  13  Or.  182. 
J?rice  V.  Knott,  8  Or.  438.    *^Knott  v.  Jefferson  Street  Ferry  Co., 
9   Or.  535. 

Pruden  v.  Grant  Co.,  12  Or.  308.  ^Wood  v.  Riddle,  14  Or. 
254. 

Putnam  v.  Douglas  County,  6  Or.  328.  ^Terwilliger  v.  Mult- 
nomah County,  6  Or.  296. 

Quicksilver  Mining  Co.  v.  Hicks,  4  Saw.  688.  '^Weiss  v.  Ore- 
gon I.  &  S.  Co.,  13  Or.  497. 

Railroad  Tax  Case,  see  San  Mateo  County  v.  S.  P.  R.  R.  Co., 
infra. 


606  Citations  of  Cases. 

Eandall,  In  re,  1  Deady,  524.     ^In  re  Ryan,  2  Saw.  413. 
Randall  and  Sutherland,  In  re,  1  Deady,  557.    ^Catlin  v.  Iloff- 

raan,  2  Saw.  492. 
Raymond  v.  Coffee,  5  Or.  132.     ^Ramsey  v.  Loomis,  6  Or.  374; 

^Board  of  S.  L.  Com.  v.  Wiley,  10  Or.  89;  ^Mclntyre  v. 

Kamm,  12  Or.  260. 
Rees  V.  Rees,  7  Or.  78.     ^Poppleton  v.  Nelson,  10  Or.  439. 
Remdall  v.  Swackharaer,  8  Or.  502.     -^^Capital  Lumbering  Co. 

V.  Hall,  9  Or.  108. 
Remillard  v.  Prescott,  8  Or.  37.     ^McCoy  v.  Bayley,  8  Or.  198. 
Rhea  v.  Umatilla  Co.,  2  Or.  298.     ^Shumway  v.  Baker  County, 

3  Or.  249;  ^Poppleton  v.  Yamhill  County,  8  Or.  339. 
Rich   V.   Palmer,  6  Or.   339.     ^Rich  v.  Palmer,    7  Or.   137; 

^Abraham  v.  Chenoweth,  9  Or.  354. 
Rickey  v.  Ford,  2  Or.  251.     ^State  v.  McKinnon,  8  Or.  490. 
Robertson  v.  Groves,  4  Or.  210.    '^Simon  v.  Portland  Com. 

Council,  9  Or.  443. 
Roberts  v.  Sutherlin,  4  Or.  219.     ^Renshaw  v.  Taylor,  7  Or. 

325;  ^Witherell  v.  Wiberg,  4  Saw.  236;  ^Semple  v.  Bank 

etc.,  5  Saw.  400. 
Roberts  v.  Tucker,  1  W.  T.  179.     ^Roberts  v.  Bush,  1  W.  T. 

181. 
Robbins  v.  Baker,  2  Or.  52.     ^Sherman  v.  Osborn,  8  Or.  67; 

^Wilson  V.  Allen,  11  Or.  156. 
Robinson  v.  Saterlee,  3  Saw.  134.     ^C.  &  S.  Bank  of  San  Jose 

V.  Corbett,  5  Saw.  175. 
Rogue  River  Mining  Co.  v.  Walker,  1  Or.  341..   ^White  v. 

Northwest  Stage  Co.,  5  Or.  102. 
Rolfes  V.  Russel,  5  Or.  400.     ''Grangers'  Market  Co.  v.  Vinson, 

6  Or.  175;  ^Dunning  v.  Cresson,  6  Or.  242. 
Rosencrantz  v.  Territory,  2  W.  T.  267.     ^Schilling  v.  Terri- 
tory, 2  VV.  T.  285;  ^Valker  v.  Territory,  2  W.  T.  286. 
Rudolph,  In  re,  6  Saw.  295.     ^Wong  Yung  Quy,  In  re,  6  Saw. 

447. 
Rugh  V.  Ottenheimer,  6  Or.  231.     ^^Besser  v.  Joyce,  9  Or.  317; 

*^Stubblefield  v.  Menz.ies,  8  Saw.  45;  ^'Ex  parte  Hanson, 

11  Saw.  659. 
Russell  V.  Lewis,  3  Or.  380.     ^Farley  v.  Parker,  6  Or.  113; 

''Walker  v.  Goldsmith,  14  Or.  145. 
Ryan  v.  Central  Pacific  R.  R.  Co.,  5  Saw.  260.     ^S.  C,  99 


Citations  of  Cases.  607 

U.  S.  383;  ^S.  P.  R.  R.  Co.  v.  Orton,  6  Saw.  198;  <^United 

States  V.  Mullan,  7  Saw.  473;  ^S.  P.  R.  R.  Co.  v.  Dull, 

10  Saw.  512;  ''United  States  v.  C.  P.  R.  R.  Co.,  11  Saw. 

441. 
Ryan  v.  Harris,  2  Or.  175.     ^Craig  v.  Mosier,  2  Or.  324;  ^State 

V.  Wiley,  4  Or.  186;  ''Multnomah  County  v.  Adams,  6  Or. 

115. 
San  Francisco  v.  Mackay,  10  Saw.  300.     *^San  Francisco  v. 

Muckay,  10  Saw.  431. 
Sa;n  Mateo  County  v.  S.  P.  R.  R.  Co.  (The  R.  R.  Tax  Case),  8 

Saw.  238.     S.  C,  116  U.  S.  138;  ''S.  F.  &  N.  P.  R.  R. 

Co.  V.  Dinwiddle,  8  Saw.  313;  ^Burns  v.  Multnomah  R'y 

Co.,  8  Saw.  551;  ^Santa  Clara  R.  R.  Tax  Case,  9  Saw. 

185;  ^Dundee  etc.  Co.  v.  School  District,  10  Saw.  63;  and 

see  Santa  Clara  County  v.  S.  P.  R.  R.  Co.,  118  U.  S.  394; 

San  Bernardino  County  v.  S.  P.  R.  R.  Co.,  118  U.  S.  417. 
Savage  v.  Glenn,  10  Or.  440.     *^Glenn  v.  Savage,  14  Or.  572. 
Schirott  V.  Philippi,  3  Or.  484.     "^Evans  v.  Christian,  4  Or. 

376;  ^^Sellers  v.  Corvallis,  5  Or.  275;  '^Canyonville  &  G. 

Road  Co.  V.  Douglas  County,  5  Or.  283;  ^Ramsey  v.  Pet- 

tengill,  14  Or.  208. 
Schooner   Columbus,   The,   5    Saw.  487.     ^Steamboat   S.  M. 

Whipple,  7  Saw.  72. 
Scott  V.  Cook,  1  Or.  24.    ''Rogue  River  M.  Co.  v.  Walker,  1  Or. 

343. 
Scovill  V.  Barney,  4  Or.  288.     ^Moser  v.  Jenkins,  5  Or.  449; 

^Miller  v.  Tobin,  9  Saw.  408. 
Sellers  v.  Corvallis,  5   Or.  273.     ^Corvallis  v.  Stock,    12  Or. 

391;  "Ramsey  v.  Pettengill,  14  Or.  211. 
Sellwood  V.  Gray,  11  Or.  534.     ^Watson  v.  Dundee  M.  &  T.  I. 

Co.,  12  Or.  480. 
Semple  v.  Bank  of  British  Columbia,  5  Saw.  88.     ''Alexander 

V.  Knox,  6  Saw.  59;  ^N.  W.  Ins.  Co.  v.  Elliott,  7  Saw.  19; 

^Orange  National  Bank  v.  Traver,  7  Saw.  213;  *Oregonian 

R'y  Co.  V.  0.  R.  &  N.  Co.,  10  Saw.  479. 
Sharp  V.  Stephens,  6  Saw.  48.     ^Cahn  v.  Barnes,  7  Saw.  54. 
Shattuck  v.  Smith,  5  Or.  125.     ^State  v.  Brown,  7  Or.  202. 
She  At  V.  Hallett,  2  Saw.  259.     '^Wllham  v.  Ilallett,  2  Saw. 

263. 
Sheppard  v.  Yocum,  10  Or.  402;  "Sheppard  v.  Yocum,  11  Or. 

237. 


608  Citations  of  Cases. 

Sherman  v.  Osborn,  8  Or.  66.  ^Wilson  v.  Allen,  11  Or.  156, 
Shively  v.  Parker,  9  Or.  500.  ^Shively  v.  Welch,  10  Saw.  141. 
Shively  v.  Welch,  2  Or.  288.     *^Newsom  v.  Greenwood,  4  Or. 

123;  ^Lewis  v.  Lewis,  4  Or.  179. 
Shockley  v.  Brown,  1  W.  T.  463.     ^Garrison  v.  Cheeney,  1 

W.  T.  492. 
Shong  Toon,  In  re,  10  Saw.  268.     ^In  re  Chew  Heong,  10  Saw. 

376. 
Silverman,  In  re,  1  Saw.  410.     "^In  re  Ryan,  2  Saw.  413. 
Simon  v.  Portland  Common  Council,  9  Or.  437.     '^Wood  v. 

Riddle,  14  Or.  254. 
Simpson  v.  Bailey,  3  Or.  515.     ^McWhirter  v.  Brainard,  5  Or. 

429;  ^Singer  M.  Co.  v.  Graham,  8  Or.  21;  ^Or.  &  W.  T.  I. 

Co.  V.  Rathbun,  5  Saw.  36;  ^O'Keefe  v.  Weber,  14  Or.  57. 
Simpson  v.  Prather,  5  Or.  86.     ^State  v.  McKinnon,  8  Or.  486. 
Sloper  Y.  Carey,  9  Or.  511.     ^Taylor  v.  Jenkins,  11  Or.  275. 
Smith  V.  Ellendale  Mill  Co.,  4  Or.  70.     ^Trullenger  v.  Todd, 

5  Or.  37;  ^Strong  v.  Barnhart,  6  Or.  99. 
Smith  V.  Ingles,  2  Or.  43.     ^Bloomfield  v.  Humason,  11  Or. 

232;  ^In  re  Estes,  6  Saw.  462;  ^Hickox  v.  Elliott,  11  Saw. 

653. 
Smith  V.  Shattuck,  12  Or.  362.     ^Minter  v.  Durham,  13  Or. 

477. 
Smith  V.  Smith,  8  Or.  100.     ^McMahan  v.  McMahan,  9  Or. 

525;  ^Cline  v.  Cline,  10  Or.  478. 
Solomon  v.  Bushnell,  11  Or.  277.     'Gill  v.  Frank,  12  Or.  511. 

S.  P.  R.  R.  Co.  V.  Orton,  6  Saw.  157.     ^The  Railroad  Tax 

Case,  8  Saw.  298;  ^Wells,  Fargo,  &  Co.  v.  O.  R.  &  N.  Co., 

8  Saw.  608;  SS.  P.  R.  R.  Co.  v.  Dull,  10  Saw.  512. 
Sprigg  V.  Stump,  7  Saw.  265.     ^Vells,  Fargo,  &  Co.  v.  0.  R.  & 

N.  Co.,  8  Saw.  607. 
Springfield  Milling  Co.  v.  Lane  County,  5  Or.  265.     "^Rankin 

V.  Buckman,  9  Or.  261. 
Stackpole  v.  School  District,  9  Or.  508.     ^Sheridan  v.  Salem, 

14  Or.  332. 
Stannis  v.  Nicholson,  2  Or.  332.     ^Hill  v.  Cooper,  6  Or.  186; 

'^Baker  v.  Woodward,  12  Or.  13. 
Starr  v.  Hamilton,  1  Deady,  268.     ^ Wells  v.  Applegate,  10  Or. 

521;  »^Dick  v.  Hamilton,  1  Deady,  332;  '-Wythe  v.  Smith, 

4  Saw.  22;  ^Manning  v.  Hayden,  5  Saw.  379;  ^Elliott  v. 


Citations  of  Cases.  609 

Teal,  5  Saw.  252;  ^Stubblefield  v.  Menzies,  8  Saw.  45; 

^Lemon  v.  Waterman,  2  W.  T.  491. 
Starr  v.  Stark,  2  Or.  118.    «Stark  v.  Starr,  6  Wall.  402;  nVhit- 

low  V.  Reese,  4  Or.  337;  ^Dolph  v.  Barney,  5  Or.  203; 

^Starr  v.  Stark,  7  Or.  500;  ^Coolidge  v.  Forward,  11  Or. 

120;  ^Stark  v.  Starr,  1  Deady,  17;  ^C.  P.  R.  R.  Co.  v. 

Dyer,  1  Saw.  649;  Stark  v.  Starr,  1  Saw.  20,  245;  SShuffle- 

ton  V.  Nelson,  2  Saw.  543;  ''Starr  v.  Stark,  2  Saw.  603; 

^Starr  v.  Stark,  2  Saw.  641;  ^Failing  v.  Stark,  2  Saw. 
.  644;  ^Bacon  v.  Stark,  2  Saw.  644;  ''NefF  v.  Pennoyer,  3 

Saw.  499;  ^Semple  v.  Bank  of  British  Columbia,  5  Saw. 

403;  ^Bear  v.  Luse,  6  Saw.  151;  ^In  re  Ah  Lee,  6  Saw.  424; 

^Mining  Debris  Case,  9  Saw.  533;  ^Goldsmith  v.  Gilliland, 

10  Saw.  610;  '^Bybee  v.  Or.  &  Cal.  R.  R.  Co.,  11  Saw. 

486;  *^Hughes  v.  Dundee  Mortgage  etc.  Co.,  11  Saw.  549. 
Starr  v.  Stark,  7  Or.  500.     ^Hill  v.  Cooper,  8  Or.  258. 
State  V.  Anderson,  10  Or.  448.     ^State  v.  Abrams,  11  Or.  172. 
State  V.  Bacon,  13  Or.  143.     ^State  v.  Saunders,  14  Or.  314. 
State  V.  Benjamin,  2  Or.  125.     ^Fleischner  v.  Chadwick,  5  Or. 

155;  ^Grant  County  v.  Sels,  5  Or.  246. 
State   V.  Brown,  7   Or.   182.     ^State  v.  Johnson,  7   Or.   211;. 

^Leonard  v.  Territory,  2  W.  T.  391. 
State  V.  Bruce,  5  Or.  68.     «State  v.  Doty,  5  Or.  493. 
State  V.  Burchard,  2  Or.  78.     *^East  Portland  v.  Multnomah 

County,  6  Or.  64. 
State  V.  Carr,  6  Or.  133.    ^tate  v.  Bergman,  6  Or.  344;  ^State 

V.  Dale,  8  Or.  231. 
State  V.  Dodson,  4  Or.  64.    ^State  v.  Brown,  7  Or.  198;  ^State 

V.  Wintzingcrode,  9  Or.  157. 
State  V.  Dougherty,  4  Or.  200.     «State  v.  Doty,  5  Or.  492; 

»State  V.  Sam,  14  Or.  348. 
State  V.  Fitzhugh,  2  Or.  227.     ''State  v.  Wilson,  6  Or.  429; 
^     ^Hallock  V.  Portland,  8  Or.  30;  ^State  v.  McDonald,  8  Or. 

118;  estate  v.  Dale,  8  Or.  233;  <^State  v.  Mackey,  12  Or. 

156;  ^Kearney  v.  Snodgrass,  12  Or.  315. 
State  V.  Git  Lee,  6  Or.  425.     '^In  re  Lee  Tong,  9  Saw.  336. 
State  V.  Hays,  2  Or.  314.     ^Whitney  v.  Darrow,  5  Or.  444. 
State  y.  Jackson,  9  Or.  457.     '^Breon  v.  Henkle,  14  Or.  513. 
State  V.  Lee  Ping  Bow,  10  Or.  27.     ^State  v.  Abrams,  11  Or. 

171. 

Ob.  DIO./-39 


610  Citations  of  Cases. 

State  V.  Lurch,  12  Or.  99.     ^State  v.  Saunders,  14  Or.  313. 
State  V.  Mann,  2  Or.  238.     ^State  v.  Carr,  6  Or.  135;  ^State  v. 

.  Gitt  Lee,  6  Or.  428;  ^In  re  Lee  Tong,  9  Saw.  337. 
State  V.  McDonald,  8  Or.  113.     ^State  v.  Powers,  10  Or.  152; 

^Sheppard  v.  Yocum,  10  Or.  409. 
State  V.  McKinmore,  8  Or.  207.    ^De  Lashmutt  v.  Selwood,  10 

Or.  52;  ^'Goldsmith  v.  Gilliland,  10  Saw.  614. 
State  V.  McKinnon,  8  Or.  493.     '^Simon  v.  Portland  Common 
•Council,  9  Or.  443;  '^Weissman  v.  Pvussell,  10  Or.  74;  ^N. 

P.  Terminal  Co.  v.  Lowenberg,  11  Or.  287. 
State  V.  Oregon  Central  R.  Pv.  Co.,  2  Or.  255.  ^Fields  v.  Lamb, 

2  Or.  342. 
State  V.  Officer,  4  Or.  180.     ^Tustin  v.  Gaunt,  4  Or.  307;  ^Mo- 

nastes  v.  Catlin,  6  Or.  121;  ^Minard  v.  Douglas  County, 

9  Or.  213;  ^N.  P.  T.  Co.  v.  Portland,  14  Or.  26. 
State  V.  Packard,  4  Or.  157.     ^State  v.  Perham,  4  Or.  189; 

tState  V.  Ah  Sam,  14  Or.  348. 
State  V.  Sly,  4  Or.  277.-    ^State  v.  Bergman,  6  Or.  343. 
State  V.  Spores,  4  Or.  198.     ^State  v.  Cartwright,  10  Or.  195. 
State  V.  Tom,  8  Or.  177.     ^Hayden  v.  Long,  8  Or.  246;  ''State 

V.  Jackson,  9  Or.  461;  ^Breon  v.  Henkle,  14  Or.  513. 
State  V.  Vowels,  4  Or.  324.  ^State  v.  Gaunt,  13  Or.  120. , 
State  V.  Whitney,  7  Or.  386.     ^'State  v.  Justus,  11   Or.  180; 

^State  V.  Mackey,  12  Or.  160. 
State  V.  Wiley,  4  Or.  184.     *^Portland  v.  Denny,  5"  Or.  161; 

^Multnomah  County  v.  Adams,  6  Or.  115. 
State  V.  Wilson,  6  Or.  428.     ^Hallock  v.  Portland,  8  Or.  30. 

^State  V.  McDonald,  8  Or.  118;   ^State  v.  Powers,  10  Or. 

152;  ^State  v.  Mackey,  12  Or.  156. 
Steamer  Spark  v.  Lee  Choi  Chum,  1  Saw.  713.     *^Tazaymon  v. 

Twombley,  5  Saw.  81. 
Steamer  Zephyr  v.  Brown,  2  W.  T.  44.     HVaddell  v.  Steamer 

Daisy,  2  W.  T.  79. 
Steeples  v.  Newton,  7  Or.  110.     ^Todd  v.  Huntington,  13  Or. 

10. 
Stephens  v.  Allen,  11  Or.  188.     ''Wilhelm  v.  Woodcock,.  11  Or. 

522. 
Stephens  v.  Knott,  2  Or.  304.     ^S.  C,  3  Or.  50. 
Stephens  v.  Murton,  6  Or.  193.     ^McCoy  v.  Bayley,  8  Or.  198. 
Stevena,  In  re,  1  Saw.  397.     ^In  re  Webb,  4  Saw.  329. 


Citations  of  Cases.  611 

Stevens  v.  Sharp,  6  Saw.  113.     ^Bear  v.  Luse,  6  Saw.  156. 
St.  Helens  Mill  Co.,  In  re,  3  Saw.  88.     ^Corbett  v.  Woodward, 

5  Saw.  411. 
Stingle  V.  Nevcl,  9  Or.  62.     ^State  v.  Chadwick,  10  Or.  473. 
Stone  V.  Oregon  City  Mfg.  Co.,  4  Or.  52.     ^Ilurst  v.  Burnside, 

12  Or.  530. 
Strong  V.  Barnhart,  6  Or.  93.     ^Allen  v.  Norton,  6  Or.  350. 
Stubblefield  v.  MerLzies,  8  Saw.  41.     ^Myers  v.  Reed,  9  Saw. 

.  136. 
Sutherland,  In  re,  1  Deady,  344.     ^In  re  Ryan,  2  Saw.  413; 

^Catlin  V.  Hoffman,  2  Saw.  492. 
Swegle  V.  Wells,  7  Or.  222.     ''De  Lashmutt  v.  Everson,  7  Or. 

218. 
Taggart  v.  Risley,  4  Or.  235.     ^Wilson  v.  McEwan,  7  Or.  108; 

^Bayley  v.  McCoy,  8  Or.  26l. 
Taylor  v.  Patterson,  5  Or.  121.     ^Russell  v.  Swift,  5  Or.  234; 

^Corbitt  V.  Salem  Gas  Light -Co.,  6  Or.  408. 
Taylor  v.  Scott,  10  Or.  483.     "^Harrington  v.  Watson,  11  Or. 

148;  ^Goldsmith  v.  Gilliland,  10  Saw.  610. 
Taylor  v.  Welch,  6  Or.  198.     ^Shively  v.  Hume,  10  Or.  76. 
Teal  V.  Collins,  9  Or.  89.     ^Coolidge  v.  Forward,  11  Or.  120. 
Tenny  v.  Mulvaney,  8  Or.  129.     S.  C,  8  Or.  513;  S.  C,  9  Or. 

405;  ^State  v.  Drake,  11  Or.  399. 
Territory  v.  Coleman,  1  Or.  191.     '^Smith  v.  United  States,  1 

W.  T.  273;  ^State  v.  Brown,  2  Or.  224. 
The  420  Mining  Co.  v.  Bullion  M.  Co.,  3  Saw.  634.     ^Trafton  v. 

Nougues,  4  Saw.  180;  "^Kinney  v.  Con.  Virginia  M.  Co.,  4 

Saw.  452;  ^Stubblefield  v.  Menzies,  8  Saw.  47. 
Tliompson  v.  Multnomah  County,  2  Or.  34.     <^State  v.  Officer,  4 

Or.  183;  ^Tustin  v.  Gaunt,  4  Or.  307;  ^Monastes  v.  Cat- 

lin,  6  Or.  121;  ^Simon  v.  Portland  Common  Council,  9 
^    Or.  443;  ^Dick  v.  Wilson,  10  Or.  490;  '^Wood  v.  Riddle, 

14  Or.  254. 
Tierney  v.  Tierney,  1  W.  T.  568.    ^Page  v.  Rodney,  2  W.  T.  463. 
Tilton  V.  Oregon  Cent.  Mil.  Road  Co.,  3  Saw.  22.     ^Holmes  v. 

School  District  No.  15,  11  Or.  332;  ^In  re  Boyd,  4  Saw. 

266. 
Trafton  v.  Nongues,  4  Saw.  178.     ''McFadden  v.  Robinson,  10 

Saw.  400;  ^Hambleton  v.  Duham,  10  Saw.  490;  <-Theur- 

kauf  V.  Ireland,  11  Saw.  514. 


612  Citations  of  Cases. 

Tribou  v.  Strowbridge,  7  Or.  156.     ^Steeples  v.  Newton,  7  Or. 

113;  ''Todd  v.  Huntington,  13  Or.  10. 
Trullenger  v.  Todd,  5  Or.  36.     ^Strong  v.  Barnhart,  6  Or.  98; 

^Hass  V.  Sedlak,  9  Or.  464;  ^Mickey  v.  Stratton,  5  Saw. 

482. 
Trullinger  v.  Kofoed,  7  Or.  228;  S.  C,  8  Or.  436.     ^Crane  v. 

Runey,  11  Saw.  420. 
Trutch  V.  Bunnell,  5  Or.  504.     «Truteh   v.  Bunnell,  11  Or. 

59. 
Tustin  V.  Gaunt,  4  Or.  305.     ^Murray  v.  Murray,  6  Or.  24; 

'^Farley  v.  Parker,  6  Or.  113;  ^Monastes  v.  Catlin,  6  Or. 

120;  ^Gage  v.  Henry,  5  Saw.  241;  '^Holmes  v.  Or.  &  Cal. 

R.  R.  Co.,  6  Saw.  279;  ^Sprigg  v.  Stump,  7  Saw.  292; 

^Holmes  v.  Or.  &  Cal.  R.  R.  Co.,  7  Saw.  384. 
Ullock,  The,  9  Saw.  634.     ^The  Abercorn',  11  Saw.  532;  ^Ex 

parte  Hanson,  11  Saw.  662. 
Underwood  v.  French,  6  Or.  66.     ^Barrett  v.  Failing,  8  Or. 

157;  ^'Glenn  v.  Savage,  14  Or.  575. 
Union  M.  &  M.  Co.  v.  Dangberg,  2  Saw.  450,     ^McWilliams  v. 

Withington,  7  Saw.  207. 
Union  M.  &  M.  Co.  v.  Ferris,  2  Saw.  176.     '^Union  M.  &  M. 

Co.  V.  Dangberg,  2  Saw.  453. 
United  States  v.  Block,  4  Saw.  211.     See  98  U.  S.  61;  and  see 

United   States  v.  Throckmorton,  infra;  ^In  re  Spenser,  5 

Saw.  190;  ^United  States  v.  Watkinds,  7  Saw.  88;  ^United 

States  V.  Reilley,  10  Saw.  135. 
United   States  v.  Bridleman,  7  Saw.  243.     ^United  States  v. 

Martin,  8  Or.  475;  ^United  States  v.  Barnhart,  10  Saw. 

492. 
United  States  v.  Carr,  8  Saw.  302.     ^United  Stales  v.  Wil- 
liams, 6  Saw.  245. 
United  States  v.  Davenport,  1  Deady,  264.     ^Ex  parte  Ilibbs, 

11  Saw.  460. 
United  States  v.  Dodge,  1  Deady,  186,     ^State  v.  Dunbar,  13 

Or.  594. 
United  States  v.  Flint,  4  Saw.  42.     ^S.  C,  98  U.  S.  61;  ^Man- 

ning  V.  San  Jacinto  Tin  Co.,  7  Saw.  427;  *^United  States 

v.  White,  9  Saw.  127;  '^Pratt  v.  California  Mining  Co.,  9 

Saw.  367;  ^"United  States  v.  San  Jacinto  Tin  Co.,  10  Saw, 

641;  ^United.  States  v.  Rose,  11  Saw.  84. 


Citations  op  Cases.  613 

United  States  v.  Griswold,  5  Saw.  25.  ^United  States  v.  Gris- 
wold,  G  Saw.  25G;  see  S.  C,  7  Saw.  296  and  311;  see  Bush 
V.  United  States,  8  Saw.  322. 

United  States  v.  Ilcndrick,  2  Saw.  476.  ''United  States  v. 
O'Neill,  2  Saw.  481;  ^United  States  v.  Johnson,  2  Saw. 
482. 

United  States  v.  Howard,  1  Saw.  507.  '"United  States  v.  Page, 
2  Saw.  354. 

United  States  v.  Leathers,  6  Saw.  17.  ''United  States  v.  Stur- 
geon, 6  Saw.  29;  ^United  States  v.  Bridleman,  7  Saw.  251. 

United  States  v.  Loftis,  8  Saw.  194.  "United  States  y.  ^Morris, 
9  Saw.  440. 

United  States  v.  Martin,  8  Saw.  473.  ''United  States  v.  Barn- 
hart,  10  Saw.  192. 

United  States  v.  Mattock,  2  Saw.  148.  <^United  States  v. 
Bridleman,  7  Saw.  245. 

United  States  v.  Mayer,  1  Deady,  138.  ^State  v.  Gerrand,  5 
Or.  221. 

United  States  v.  McArdle,  2  Saw.  367.  Kahn  v.  Salmon,  10 
Saw.  196. 

United  States  v.  Nelson,  5  Saw.  68.    ^United  States  v.  Young, 

8  Saw.  109;  ^United  States  v.  Williams,  9  Saw.  377. 
United  States  v.  Robinson,  1  Saw.  219.     ^S.  C,  13  Wall  363; 

^Balfour  v.  Wilkins,  5  Saw.  434. 

United  States  v.  Seveloff,  2  Saw.  311.  TTnited  States  v.  Wins- 
low,  3  Saw.  338;  "^United  States  v.  Leathers,  6  Saw.  19; 
<=United  States  v.  Williams,  6  Saw.  245;  ^United  States  v. 
Bridleman,  7  Saw.  244;  ^United  States  v.  Stephens,  8  Saw. 
117;  ''Kie  v.  United  States,  11  Saw.  581. 

United  States  v.  Shaw  Mux,  2  Saw.  364.     <^United  States  v. 
Winslow,  3  Saw.  340. 
United  States  v.  Smith,  8  Saw.  100.   ^United  States  v.  Williams, 

9  Saw.  107;  ^'United  States  v.  Benjamin,  10  Saw.  266. 
United  States  v.  Stephens,  8  Saw.  116.     ^Kie  v.  United  States, 

11  Saw.  581. 

United  States  v.  Sturgeon,  6  Saw.  29,  ^United  States  v.  How- 
ard, 9  Saw.  158. 

United  States  v.  Tichenor,  8  Saw.  142.  ^United  States  v. 
White,  9  Saw.  131;  ^Pratt  v.  California  Mining  Co.,  9 
Saw.  367;  ''United  States  v.  Adams,  11  Saw.  107. 


614  Citations  of  Cases. 

United  States  v.  The  San  Jacinto  Tin  Co.,  10  Saw.  639.    ^United 

States  V.  Rose,  11  Saw.  84. 
United  States  v.  Throckmorton,  4  Saw.  42.    ^S.  C,  98  U.  S.  61; 

'^United  States  v.  White,  9  Saw.  127;  ^^United  States  v. 

Minor,  10  Saw.  155;  *^United  States  v.  San  Jacinto  Tin  Co., 

10  Saw.  641;  see  United  States  v.  Block,  supra. 
United  States  v.  Tom,  1  Or.  27.     ^United  States  v.  Sevelofif,  2 

Saw.   314;  ^United   States   v.  Shaw  Mux,   2   Saw.  365; 

^United  States  v.  Winslow,  3  Saw.  338;  ^United  States  v. 

Leathers,  6  Saw.  19;  ^United  States  v.  Bridleman,  7  Saw. 

224. 
United  States  v.  Waller,  1  Saw.  701.     ^United  States  v.  Block, 

4  Saw.  213;  ^United  States  v.  Reilley,  10  Saw.  135. 
United  States  v.  Walsh,  1  Deady,  281.    ^United  States  v.  Gris- 

wold,  5  Saw.  30. 
United  States  v.  White,  9  Saw.  125.     ^United  States  v.  Minor, 

10  Saw.  155;  ^United  States  v.  Rose,  11  Saw.  84. 
United  States  v.  Winslow,  3  Saw.  337.     ^Conroy  v.  Oregon 

Con.  Co.,  10  Saw.  633. 
Vandolph  v.  Otis,  1  Or.  153.     ^Lamb  v.  Starr,  1  Deady,  362; 

^Stevens  v.  Sharp,  6   Saw.   117;   ^Murray  v.  Murray,  6 

Or.  30. 
Walker  v.  Goldsmith,  7  Or.  161.     ^Burns  v.  Scoggin,  10  Saw. 

77. 
Wallace,  In  re,  1  Deady,  433.     ^In  re  MuUer,  1  Deady,  518; 

*^In  re  Oregon  Iron  Works,  4  Saw.  170. 
Walsh  V.  Oregon  R'y  &  Nav.  Co.,  10  Or.  250.    ^Grant  v.  Baker, 

12  Or.  331;  ^Conroy  v.  Oregon  Con.  Co.,  10  Saw.  632. 
Walton,  In  re,  1  Deady,  442.     In  re  Walton,  1  Deady,  510;  In 

re  Walton,  1  Deady,  598. 
Wan  Yin,  In  re,  10  Saw.  532.     ^Ex  parte  Hanson,  11  Saw. 

661. 
Warner  v.  Myers,  4  Or.  72.     ^Durham  v.  Monumental  S.  M. 

Co.,  9  Or.  44;  ^Habersham  v.  Sears,  11  Or.  434. 
Waters  v.  Campbell,  4  Saw.  121.     United  States  v.  Williams, 

6  Saw.  245;  '^Kie  v.  United  States,  11  Saw.  581. 
Watkins  v.  Mason,  11  Or.  72.     ^Phipps  v.  Kelly,  12  Or.  215. 
Watson  V.   Brooks,  8  Saw.   31,6.     The  Ullock,  9  Saw.  642; 

^Goldsmith  v.  Gilliland,  10  Saw.  618. 
Watts  V.  United  States,  1  W.  T.  288.     ^Watts  v.  Territory,  1 

W.  T.  411. 


Citations  of  Cases.  615 

Webb  V.  Nickerson^l  Or.  382.     ^Case  T.  M.  Co.  v.  CampbeU, 

14  Or.  469. 
Weiss  V.  Jackson  County,  9  Or.  470.     ^Watticr  v.  Miller,  11 

Or.  330. 
Wells  V.  Applegate,  10  Or.  519,     <^ Aiken  v.  Coolidge,  12  Or. 

247. 
Wells,  Fargo,  &  Co.  v.  Oregon  and  California  R.  R.  Co.,  9  Saw. 

426.     ^Wells,  Fargo,  &  Co.  v.  0.  R.  &  N.  Co.,  9  Saw.  605. 
Wells,  Fargo,  &  Co.  v.  Oregon  and  California  R.  R.  Co.,  8  Saw. 

600.     ^S.  C,  9  Saw.  426;  ^Ex  parte  Richard  Koehler,  11 

Saw.  39. 
Wells,  Fargo,  &  Co.  v.  Oregon  R'y  &  Nav.  Co.,  8  Saw.  600. 

«=Hughes  V.  N.  P.  R.  R.  Co.,  9  Saw.  322;  ^Wells,  Fargo, 

&  Co.  V.  N.  P.  R'y  Co.,  10  Saw.  457;  ^Ex  parte  Richard 

Koehler,  11  Saw.  39. 
Wetmore  v.  Wetmore,  5  Or.  469.     ^Hall  v.  Hall,  9  Or.  456; 

^Barrett  v.  Failing,  6  Saw.  476, 
^Vheeler  v.  Port  Blakcly  Mill  Co.,  2  W,  T,  71.     ^Baxter  v. 

Smith,  2  W.  T.  99. 
White  V.  Northwest  Trading  Co.,  5  Or.  99.     ^Bailey  v.  Wil- 
liams, 6  Or.  73. 
Willamette  Falls  Canal  Milling  &  T.  Co.  v.  Williams,  1  Or, 

112.     f Willamette  Falls  Canal  Milling  &  T.  Co.  v.  Clark, 

1  Or.  113. 
Willamette   Falls  etc.  Co.  v.  Smith,  1   Or.   181.     ^State  v. 

Dougherty,  4  Or.  202. 
Willamette  Falls  Transportation  &  M.  Co.  v.  Remick,  1  Or. 

169.     '^Dalles  L.  &  M.  Co.  v.  The  W.  W.  M.  Co.,  3  Or. 

531. 

Wilson  V.  Maddock,  5  Or.  480.    HBartel  v.  Lope,  6  Or,  327. 

^Wilson  V.  McEwan,  7  Or.  87.     ^Wilson  v.  Shively,  10  Or.  269. 

'Wilson  V.  Salem,  3  Or.  482.     ^Cross  v.  Chichester,  4  Or.  116. 

Wilson  V.  Shively,  11  Or.  215.     ^Wilson  v.  Welch,  12  Or.  358. 

Wilson  V.  Wald,  2  W.  T.  376.    ^Collins  v.  Seattle,  2  W.  T, 

355. 
Wilson  V.  Welch,  12  Or.  353.    ^IcCann  v.  Oregon  R'y  Co.,  13 

•Or.  463. 
Wilson  Sewing  Machine  Co.  v.  Moreno,  6  Saw.  35.     *^Peyser  v. 

Cole,  11  Or.  45;  ^P,  R.  M,  Co.  v.  D.  S.  &  G.  R.  R.  Co.,  7 

Saw.  68;  ^Burns  v.  Scoggin,  10  Saw.  75, 


616  Citations  of  Cases. 

Wi-igard  v.  Jameson,  2  W.  T.  402.     ^Sparks  v.  Brown,  2  W.  T. 

433. 
Weise  v.  Smith,  3  Or.  445.     ^Shaw  v.  Oswego  Iron  Co.,  10  Or. 

375. 
Witherell  v.  Wiberg,  4  Saw.  232.     ^Eubanks  v.  Leveridge,  4 

Saw.  277;  ^Semple  v.  Bank  of  British  Columbia,  5  Saw. 

101;  ^'Oregon  Trust  Co.  v.  Shaw,  5  Saw.  338;  *^Oregonian 

R'y  Co.  V.  0.  R.  &  N.  Co.,  10  Saw.  471. 
Wolf  V.  Smith,  6  Or.  73.     ^Roy  v.  Horsley,  6  Or.  272. 
Wong  Yung  Quy,  In  re,  6  Saw.  237.     S.  C,  6  Saw.  442;  ^In  re 

Ah  Lee,  6  Saw.  414;  '^Laundry  Ordinance  Case,  7  Saw. 

532;  cin  re  Wan  Yin,  10  Saw.  538. 
Wood  V.  Riddle,  14  Or.  254.     ^Snow  v.  Reed,  14  Or.  346. 
Woodsides  v.  Rickey,  1  Or.  108.     ^Lee  v.  Simmonds,  1  Or.  158. 
Wright,  The,  1  Dea'dy,  591.     ^Holmes  v.  Or.  &  Cal.  R.  R.  Co., 

6  Saw.  272;  ^The  Glenearne,  7  Saw.  202. 
Wright  and  Jones  v.  Edwards,  10  Or.  298.     ^N.  P.  T.  Co.  v. 

Portland,  14  Or.  27;  nValker  v.  Goldsmith,  14  Or.  143. 
Wythe  V.  Haskell,  3  Saw.  574.     ^Wythe  v.  Smith,  4  Saw.  24. 
Wythe  V.  Smith,  4  Saw.  17.     <=Newby  v.  Rowland,  11  Or.  134; 

^Elliott  V.  Teal,  5  Saw.  250;  ^'Manning  v.  Ilayden,  5  Saw. 

378;  ^Coos  Bay  Wagon  Road  Co.  v.  Crocker,  6  Saw.  578; 

^Alexander  v.  Knox,  6  Saw.  57;  *^Stubblefield  v.  Menzies, 

8  Saw.  45. 


TABLE  OF  CASES. 


TABLE  or  CASES. 


Abbott,  ISIcMullan  v.,  1  Or.  258. 
Abbott,  Abrabarav.,  8  Or.  53. 
Abraham  v.  Abbott,  8  Or.  53;  207. 
Abraham    v.   Chenoweth,  9  Or.  348; 

277,  404,  406. 
Abraham,  Crawford  v.,  2  Or.  163. 
Abraham.  Iloseburgv.,  8  Or.  5'J9. 
Abraham,  Douglas  County  Road  Co. 

v.,  5  Or.  318. 
Abrams,  Scars  v.,  10  Or.  499. 
Abrams,  State  v.,  11  Or.  169. 
Ackcrraan,  Williams  v. ,  8  Or.  405. 
Adams  v.   Adams,  12  Or.   170;   217, 

219. 
Adams  v.  Kelly,  2  W.  T.  263;  527. 
Adams  v.  Multnomah  Co.,  6  Or.  116; 

118,  283,  4'15,  464. 
Adams  v.  Petram,  11  Or.  204;  10,  13, 

15,  96,  108,  163,  353,  540. 
Adams  v.  Rutherford,  13  Or.  78;  63, 

92,  552. 
Adams  v.  Wilson,  6  Or.  391;  330,  441, 

469. 
Adams,  McAlmond  v.,  1  W.  T.  230. 
Adams,  Multnomah  Co.  v.,  6  Or.  114. 
Adams,  Trustees  M.  E.  Church  v.,  4 

Or.  76. 
Adkins  v.  Lewis,  5  Or.  292;  408. 
Ah  Kow,   Seattle   and   Walla  Walla 

R.  R.  Co.  v.,  2  W.  T.  36. 
^Ah  Lee,  State  v.,  7  Or.  237. 
Ah  Lee,  State  v.,  8  Or.  214. 
Ah  Lcp  V.  Gong  Choy,   13  Or.  429; 

49,  58,  542. 
Ah  Lcp  V.  Gong  Choy  and  Gong  Wmg, 

13  Or.  205;  45,  46,  79,  327,  329,  331, 

375,  394,  442,  448. 
Ah  Sam,  State  v.,  7  Or.  477. 
Ah  Sam,  State  v.,  14  Or.  347. 
Aiken' V.  Aiken,   12  Or.   203;  7,   10, 

108,   165,  225,  288,  353,  355,  374, 

476. 
Aiken  v.  Coolidge,  12  Or.  244;  10,  14, 

370,  453. 
Aikiu  V.  Leonard  ct  al.,  1  Or.  224;  61, 

62,  190,  260. 


Albany  and   Santiam   W.   D.    Co.  v. 
Crawford,    11    Or.    243;    211,    212, 
257,  403,  404. 
Albce  V.  Albee,  3  Or.  321;  28,  438, 

522,  523,  564. 
Alberson  v.  Mahaffey,  6  Or.  412;  21, 

48,  56. 
Allen  V.  Hirsch,  8  Or.  412;  126,  306, 

532. 
Allen'  V.  Norton,  6  Or.  344;  274,  333, 

334,  346. 
Allen,  Newton  v.,  3  Or.  543. 
Allen,  Spechtv.,  12  Or.  117. 
Allen,  Stephens  v.,  11  Or.  188. 
Allen,  White  v.,  3  Or.  103. 
Allen  and  Lewis,  Wilson  v.,   11  Or. 

154. 
Altree  v.  Moore,  1  Or.  350:  288,  369. 
Ambrose,  Burt  v.,  11  Or.  26. 
Anderson  v.  Baxter,  4  Or.  105;   403, 

405,  465,  525. 
Anderson  v.  Laughery,  3  Or.  277;  31, 

484. 
Anderson,  Carroll  v.,  2  W.  T.  366. 
Anderson,  State  v.,  10  Or.  448. 
Andros  v.  Childers,   14  Or.   447;  27, 

93,  331,  370,  371,  453. 
Andrusv.  Knott,  12  Or.  501;  486. 
Ankeny  V.  Blackiston,  7  Or.  407;  301, 

467,  538. 
Aikeny  v.  Fairview  Milling  Co.,  10 

Or.  390;  21,  46,  50,  34S,  4:i4. 
Ankeny  v.  Multnomah  County,  3  Or. 

386;  388,  546. 
Ankeny  v.  Multnomah  Co.,  4  Or.  271; 

531,  546. 
Ankeny,  Brooks  v.,  7  Or.  461. 
Applegate,  Wells  v.,  10  Or.  519. 
Applcgate,  WcCs  v.,  12  Or.  208. 
Archer  v.  Lapp,   12  Or.  196;  292. 
Armstrong  v.  Armstrong,   1  Or.  207; 

8,  535. 
Arrigoni  v.  Johnson,  6  Or.  167;  192, 

193,  269,  427,  469. 
Arrigoni,  Johnson  v.,  5  Or.  485. 
Arthur  v.  Moss,  1  Or.  193;   192,  510. 


620 


Table  of  Cases. 


Astoria,  Won<?  v.,  13  Or.  538. 
Atkiuson  v.  Morrissy,  3  Or.  332;  277, 

405,  550. 
Atteberry  v.  Atteberry,    8   Or.    224; 

217,  219,  31G. 
Auseuig,  Miller  v.,  2  W.  T.  22. 
Ayer:5,  McCoy  v.,  2  W.  T.  307. 
Ay  res,  McCoy  v.,  2  W.  T.  203. 
Babcock,  Board  of  School  and  Land 

Commissioners  v.,  5  Or.  472. 
Bach,  Messe,  and  Company  v.  Smith, 

2  W.  T.  145;  144,  389,  797. 
Bachclder  v.  Wallace,   1  W.  T.   107; 

72. 
Backeastos,  Thompson  v.,   1  Or.  17. 
Bacon,  Rohr  v.,  13  Or.  350. 
Bacon,  State  v.,  13  Or.  143. 
Bagley  v.  Carpenter,  2  W.  T.  19;  15G, 

355,  577. 
Bailey  v.  Frush,  5  Or.  136;  21,  54,  56, 

124.  155. 
Bailey  v.  Warren,   1  Or.  357;  25. 
Bailey  v.  WUliams,  G  Or.  71;  04,  335, 

343,  536. 
Bailey,  Simpson  v.,  3  Or.  515, 
Baiii,  Lyons  v.,  1  W.  T.  482. 
Baker,  Robbins  v.,  2  Or.  52. 
Baker  v.  Stoughton,  1  Or.  227;  137. 
Baker  v.  Woodward,    12  Or.  3;  206, 

208,  209,  210,  212,   236,  255,   341, 

432,  4S2,  497,  527. 
Baker,  City  of  Portland  v.,  8  Or.  356. 
Baker,  Grant  v.,  12  Or.  329. 
Baker,  McKinney  v.,  9  Or.  74. 
Baker,  Rosendorf  v.,  8  Or.  240. 
Baker,  Stevens  v.,  1  W.  T.  315. 
Baker,  Woodward  v.,  10  Or.  491. 
Baker  and  Cain,  Glasford  and  Shield 

v.,  1  W.  T.  224. 
Baker  and  Hamilton  v.  McAllister,  2 

W.  T.  48;  69,  70,  144,  387,  473,  474, 

511,  552. 
Baker  and  Smith  v.  Eglin,  11  Or.  333; 

89,  134,  143,  298,  299,  433,  541. 
Baker  County,  Shumway  v.,  3  Or.  246. 
Baldock  V.  Johnson,  14  Or.  542;  293, 

400,  401,  439,  454,  497. 
Baldro  V.  Tolmie,  1  Or.   176;  28,  77, 

130,  524,  529,  533. 
Balfour  V.  Davis,  14  Or.  47;  30,  84, 

248,  535,  561. 
Ball  V.  Lappius,  3  Or.  55;  393. 
Baiiiford  V.  Bamford,  4  Or.  30;  218, 

220,  336,  343,  459. 
Bamford,  Howard  v.,  3  Or.  565. 
Baney,  Scovill  v.,  4  Or.  288. 
Bank  of  British  Columbia  v.  Harlow 

and  Page,  9  Or.  338;  48,  99,  280. 
Bank    of    British    Columbia,    Miller 

Bros,  v.,  2  Or.  291. 
Bank  of  British  Columbia  v.  Page,  6 

Or.  431;  138,  148. 


Bank  of  Briti:h  Columbia  v.  Page,  7 

Or.  454;  275,  516. 
Banks  v.  Crow,  3  Or.  477;  135,  459, 

561. 
Barber,  Wisner  v.,  10  Or.  .342. 
Barkentine  C.  L.  Taylor,  Puget  Sound 

Com.  Co.  v.,  2  W.  T.  93. 
Barlow  and  Shepherd  v.   Coggan,    1 

W.  T.  257;  11,  81,  90,  444,  448. 
Barlow,  Oregon  &  Cal.  R.   R.  Co.  v., 

3  Or.  311. 
Barnard,  Donan  v.,  5  Or.  390. 
Barney,  Dolph  v.,  5  Or.  191. 
Barnhart,  (loodwin  v.,  1  Or.  215. 
Barnhart,  Strong  v.,  5  Or.  49^1. 
Barnhart,  Strojig  v.,  6  Or.  93. 
Barr  v.  Mitchell,  7  Or.  340;  87,  89. 
Barrett  v.    Barrett,    5   Or.    411;    211, 

218,  294,  439. 

Barrett  v.   Failing,   8    Or.    152;   257, 

258,  337,  502. 
Bartol  v.  Lope,  6  Or.  321 ;  14,  86,  105, 

141,  257,  263,  267,  291,  550. 
Bartels,  Jennings  v.,  2  W.  T.  .306. 
Barrett,  Carney  v.,  4  Or.  171. 
Baxter  v.  Scoland,  2  W.  T.  86;   60, 

375,  467. 
Baxter  v.  Smith,  2  W.  T.  97;  81,  107, 

384,  385,  387,  433. 
Baxter  v.  Waite,  2  W.  T.  228;  4,  245, 

249,  250,  294,  325,  367,  401. 
Baxter,  Anderson  v.,  4  Or.  105. 
Baxter,  Brewster  v.,  2  W.  T.  123. 
Bauer  and  Roemer,  Corbit  and  Mac- 

leay  v.,  10  Or.  340. 
Baumgartner,  Fassman  v.,  3  Or.  469. 
Bay  ley,  McCoy  v.,  8  Or.  19u. 
Baylcy  v.  McCoy,  8  Or.  259;  207,  241. 
Baylev,  Clark  v.,  5  Oi-.  343. 
Beal,  Myer  v.,  5  Or.  130. 
Beacannon  v.  Licbe  et  al.,  11  Or.  4rl3; 

7,  447. 
Board,  Crawford  v.,  12  Or.  447. 
Beck,  Houghton  and  Palmer  v.,  9  Of. 

325. 
Becker,  State  v.,  12  Or.  318. 
Beckley  v.  Learn,  3  Or.  470;  28^ 
Beckley  v.  Learn,  3  Or.  544;  285. 
Becks,  Naylor  v.,  1  Or.  216. 
Beezley  v.  Crosseu,    14   Or.  473;   74, 

80,  1.37,  386. 
Beezley,  Ramsby  v.,  11  Or.  49. 
Beezley,  Snipes  v.,  5  Or.  420. 
Beezley,  Southwell  v.,  5  Or.  143. 
Beezley,  Southwell  v.,  5  Or.  458. 
Beltils,  Derkeny  v.,  4  Or.  258. 
Beltv.  Poppleton,  11  Or.  201;  71. 
Ben.ler  v.  Blinder,  14  Or.  353;  69,  155, 

219,  221. 

Benjamin,  State  v.,  2  Or.  125. 
Bennett  v.  N.  P.  Ex.  Co.,  12  Or.  49; 
23,  68,  111,  255,  271,  364,  430,  506. 


Table  of  Cases. 


621 


Bennett  v 


mnett  v.  Stephens,  8  Or.  444;  G3,  IBloomfieMv.  Buchanan  et  al..  13  Or. 
66,  136,  270,  472.  564.  lOS;  447. 

Bennet  v.  United  States,  2  W.  T,  179;    Bloonifield  v.  Buchanan,  14-Or.   181; 


44,  190. 
Bennett,  Blanchard  v.,  1  Or.  328. 
Benson,  Robbins  v.,  11  Or.  514. 
Bentley   v.    Jones,    7    Or.    108;    155, 

434. 
Bentley  v.  Jones,  8  Or.  47;   48,   57, 

269,  275,  471. 
Benton  County,  King  v.,  10  Or.  512. 
Benton  County,  Ilead  v.,  10  Or.  154. 
Benton  County  Commissioners,  Fargo 

v.,  1  Or.  262. 
Bequette  v.  People's  Trans.  Co.,  2  Or. 

200;  425. 
Bergman  and  Barry  v.  Twilight,    10 

Or.  337;  264,  295. 
Bergman,  State  v.,  6  Or.  341. 
Berry  v.   Charlton,   10  Or.   363;   79, 

499. 
Bertrand,  State  v.,  3  Or.  61. 
Beiser  v.  Hawthorne,  3  Or.  129;  277, 

324,  405,  408,  440. 
Besser  v.  Hawthorne,  3  Or.  512;  405, 

408,  440. 
Besser  v.  Joyce,  9  Or.  310;  86,   123, 

191,  264,  292,  317,  323. 
Besser,   City  of  Portland  v.,   10  Or. 

242. 
Bethel,  Weiss  v.,  8  Or.  522. 
Betts  Spring  Co.,  NicklLa  v.,  11  Or. 

408. 
Bigelow  V.  Leabo,  8  Or.  147;  292. 
Bigelow  V.  Scott,  2  W.  T.  378;  93. 
Bills,  Sheriff,  Fleming  v..  3  Or.  286. 
Bingham,  Hawley  and  Dodd  v.,  6  Or. 

76. 
Bingham,  Suksdorffv.,  13  Or.  369. 
Bird,  Darragh  v.,  3  Or.  229. 
Bird  V.  Wasco  County,  3  Or.  282;  121, 

282,  516,  435,  534. 
Blachley  v.  Butler,  5  Or.  463;  481. 
Blackiston,  Ankeny  v.,  7  Or.  407. 
Blackiston,  Doscher  v.,  7  Or.  143. 
Blackiston,  Doscher  v.,  7  Or.  403. 
Blair,  Cooper  v.,  14  Or.  255. 
Blakely,  Whittier,  Fuller,  &  Co. 
'      v.,  13  Or.  546. 
Blakeney,  Huntington  v.,    1   W.  T. 

111. 
Blakesly  v.  Cay  wood,  4  Or.  279;  303, 

481. 
Blalock,  Cock  v.,  1  W.  T.  560. 
Blatichard  v.  Bennett.  1  Or.  328;  31, 

355,  455,  459,  503. 
Blanchard,  McCormick  v.,  7  Or.  232. 
Blinn'v.  Crosby,  2  W.  T.  109;  42,  60, 

347,  352. 
Blodgett,  Hyland  v.,  9  Or.  166. 
Bloodsworth,    Hildeband  v.,    12  Or. 
75. 


58,  328,  380,  448. 
Bloomficll  V.   Huma-son,   11  Or.  229; 

273,  280,  339,  431,  495. 
Blumberg  v.  McNear,   1  W.  T.   141; 

62,  378,  557. 
Boaril  of  School  and  Land  Commis- 
sioners V.  Babcock,  5  Or.  472;  208, 
495. 
Boehreinger  v.  Creighton,  10  Or.  42; 
78,    101,    102,   205,  209,   258,   270, 
431. 
Boggs,  Spores  v.,  6  Or.  122. 
Bohlman  v.   Coffin,   4  Or.   313;  207, 

212,  25.3,  430,  464,  496. 
Bonanza  Gold  and  Quicksilver  Com- 
pany, Burrage  v.,  12  Or.  169. 
Bouser  v.  MiUer,  5  Or.  110;  204,  ;>10, 

294,  395. 
Bonser,  Musgrove  v.,  5  Or.  313. 
Boon  V.  Boon,  12  Or.  4.37;  217,  220. 
Boon  V.  MeClane,  2  Or.  331;  56,  351, 

439. 
Bovee,  State  v.,  11  Or.  57. 
Bowen  v.  Emmerson,  3  Or- 452;  114, 

511. 
Bowen  v.  State,  1  Or.  270;  30.-46,-62, 

173,  190,  ,348,  427,  428. 
Bowles  V.  Doble,   1 1  Or.  474;  26,  63, 

83,  330,  331,  460,  470. 
Bowman  v.  Holladay,  3  Or.  182;  457. 
Boyd,  King  v.,  4  Or.  326. 
Boydston  v.  Giltner,  3  Or.   118;  192, 
193,  260,  364,  421,  423,  451,   455, 
456. 
Boyer  v.  Fowler,   1   W.   T.   101;  97, 
100,   101,   165,   197,  215,  437,  498, 
501,  529. 
Brady,  Moreland  v.,  8  Or.  303. 
Brainard,  McWhirter  v.,  5  Or.  426. 
Branson  v.   Oregonian  Railway  Co., 
10  Or.  278;  57,  82,   141,   148,   153, 
470,  476,  492. 
Branson  v.  Oregonian  Railway  Co.,  11 
Or.  161;  57,  139,  149,  153,  258,  295, 
458,  460,  470,  558. 
Brauns  v.   Stearns,    1   Or.    367;   207, 

256,  459. 
Brazee,   Clarke  County  v.,   1  W.   T. 

199. 
Brazee  v.  Schofield,  2  W.  T.  209;  242, 
301,  302,  375,  445,  480,  481,  484, 
489. 
Breemer  v.  Burgess,  2  W.  T.  290;  5, 

28,  36,  43,  47,  325,  473. 
Bremer  v.  Fleckcnstein  an<l  Mayer,  9 
Or.  266;  78,  105,  106,  235,  274,  295. 
325. 
Breon  v.  Henkle,  14  Or.  494;  65,  196. 
365,  366,  1314. 


622 


Table  of  Cases. 


Brewster  v.  Baxter,  2  W.  T.  135;  12, 

43,  259,  363,  510. 
BriJwell,  Campbell  v.,  5  Or.  311. 
Bridwell,  Oregonian  Railway  Co.  v., 

11  Or.  282. 
Brifjgs,  Hatcher  v.,  6  Or.  31. 
Briiiey  v.   Starr,   6  Or.  207;  41,  82, 

495. 
Briscoe  v.   Jones,  10  Or.  63;  61,  66, 

249,  362,  365,  3G6. 
Brobackv.  Huflf,  11  Or.  395;  32,  503. 
Bronson,  Chipman  v.,  3  Or.  320. 
Brooks  V.   Ankeny,   7    Or.   461;  219, 

243. 
Brooks,  Corpe  v.,  8  Or.  222. 
Brooks,  Watson  v.,  11  Or.  271. 
Browor,  Teller  v.,  14  Or.  405. 
Brown  v.   Brown,    7  Or.  285;  9,   14, 

162,  291,  412,  557,  558,  572,  574. 
Brown  v.   Calialin,  3  Or.  45;  77,  204, 

256,  267,  427,  449. 
Brown  V.   FIciscbner,  4  Or.   132;  71, 

247,  512,  555,  505. 
Brown  v.  Harper,  4  Or.  89;  73,  383, 
Brown  v.  Hazard,  2  W.  T.  464;  43, 

52   55. 
Brown  V.  Lord,  7  Or.  302;  465,  520, 

523. 
Brown  V.  Moore,  3  Or.  435;  63,  114, 

19.3,  561. 
Brown  v.   School  District-  No.  1,   12 

Or.  345;  321,  544,  551. 
BroM^l,  State  v.,  2  Or.  221. 
Brown,  Groldsmith  v.,  5  Or.  418. 
Brown,  Lung  Louis  v.,  7  Or.  326. 
Brown,  Simon  v.,  5  Or.  285. 
Brown,  State  v.,  5  Or.  119. 
Brown,  State  v.,  7  Or.  186. 
Brown,  Steamboat  '^'iphyr  v.,  2  W.  T. 

44. 
Brown,  Boeder,  Peabody  &  Co.  v.,  1 

W.  T.  113. 
Brown  Bros.   &   Co.,    Simpson  v.,   1 

W.  T.  247. 
Brown  Bros.  &  Co.  v.  Forest,  1  W.  T. 

201;  45,  01,  63,  66,  70,  366,  367. 
Brown  Bros.  &  Co.  v.  Pepin,  1  W.  T. 

205. 
Brown  and  Goodman  v.  Northcutt,  14 

Or.  529;  5G5. 
Brown  &  Co.  v.  Rathburn,  10  Or.  158; 

27.  89,  92,  541. 
Brown,  Shockley  v.,  1  W.  T.  463. 
Brown,  Sparks  v.,  2  W.  T.  426. 
Brown,  State  v.,  10  Or.  216. 
Brown,  Strong  v.,  13  Or.  172. 
Broy,  Clinc  v.,  1  Or.  89. 
Bruce,  State  v.,  5  Or.  68. 
Brugger  v.   Butler,   6  Or.   459;    135, 

199,  202,  399,  507. 
Brummet  v.  Weaver,  2  Or.  ]68;  122, 
316. 


Brundage  v.   Monumental  Gold  and 

Silver  Mining  Company,  12  Or.  322; 

153,  442. 
Buchanan  v.  Schulderman,  11  Or.  150; 

573. 
Buchanan,  Bloomfield  v.,  13  Or.  108. 
Buchanan,  Bloomfield  v.,  14  Or.  181; 

3. 
Buchtel,  Wilt  v.,  2  W.  T.  417. 
Buckley,  Ward  v.,  1  W.  T.  279. 
Buckman,  Rankin  v.,  9  Or.  25.3. 
Budd  V.  Multnomah  R'y  Co.,  12  Or. 

271;  145,  153. 
Bud<l,  Walla  Walla  P.  &  P.  Co.  v.,  2 

W.  T.  336. 
Budd  V.  Walla  Walla  P.  &  P.  Co.,  2 

W.  T.  347;  9.3,  151. 
Budd,  Wells  v.,  14  Or.  G6. 
Buffum,  Pool  v.,  3  Or.  438. 
Buford  V.  New  York  Life  Ins.  Co.y5 

Or.  334;  135,  324,  363. 
Bullene  v.  Garrison,  1  W.  T.  587;  6, 

20,    144,   ^44,    438,   465,   473,   483, 

527. 
Bump,  Pitman  v.,  5  Or.  17. 
Bunnell,  Trutch  v.,  5  Or.  504. 
Bunnell,  Trutch  v.,  11  Or.  58. 
Burbank,  By  bee  v.,  2  Or.  295. 
Burch  V.  Earhart,  7  Or.  58;  71,  123, 

125  543. 
Burdi  V.  McDaniel,  2  W.  T.  58;  11, 

135,  479. 
Burch,  Gilmore  v.,  7  Or.  374. 
Burchard  v.  State,  2  Or.  78;  173,  387. 
Burgess,  Breeuier  v.,  2  W.  T.  290. 
Burkhart  v.   Howard,  14  Or.  59;  69, 

95,  203,  410. 
Burkhart,  Grange  Union' v.,  8  Or.  51. 
Burmeister  v.  Howard,  1  W.  T.  207; 

103,  201,  206,  226,  244,  411,  414,  419. 
Burnett  v.  Douglas  County,  4  Or.  388; 

503,  565. 
Burnside,  Hurst  v.,  12  Or.  520. 
Barnside  v.  Savier,  6  Or.  154;  8,  14, 

445,  446. 
Burrage  v.  Bonanza  G.  &  Q.  S.  M.  Co., 

11  Or.  169;  7,  236,  515. 
Burston  v.  Jackson,  9  Or.  274;  208, 

243,  317. 
Burt  V.  Ambrose,  11  Or.  26;  33,  155, 

158. 
Burton  v.  Moffit,  3  Or.  29;  101,  319. 
Burton,  Pencinse  v.,  9  Or.  178. 
Bush,  Roberts  v.,  1  W.  T.  181. 
Bushnell,  Solomon  v.,  11  Or.  277. 
Butler,  Blachley  v.,  5  Or.  463. 
Butler,  Smith  v.,  11  Or.  46. 
Buzl)y,  Seattle  v.,  2  W.  T.  25. 
Bybee  v.  Burbank,  2  Or.  296;  246,  369, 

563. 
Bybee  v.  Summers,  4  Or.   354;  389, 
445. 


Table  of  Cases. 


623 


Byers  v.  Cook,  13  Or.  297;  41,  40,  54, 

83. 
Cahalin,  Brown  v.,  3  Or.  45. 
Cain  V.  Harden,  1  Or.  360;  21,  31,  47, 

5G,  453,  45U,  469,  475,  540. 
Calhoun  v.   Gilliland,  2  W.   T.    174, 

450. 
Campbell  v.  Bridwell,  5  Or.  311;  114, 

284,  556. 
Campbell,  Case  T.  M.  Co.  v.,  14  Or. 

460. 
Campbell,  Kaler  v.,  13  Or.  596. 
Campbell,  Mitchell  v.,  14  Or.  454. 
Campbell,  Odell  v.,  9  Or.  298. 
Canal  Comni'rs  v.  W.  T.  &  L.  Co.,  6 

Or.  219;  111,  121,  148,  390,  394. 
Cannon,  State  v.,  11  Or.  312. 
Canyon  Road  Co.  v.  Lawrence,  3  Or. 

519;  48. 
Canyon  Road  Co.,  Fink  v.,  5  Or.  301. 
Canyonvillo  and  Galesvillo  Road  Co. 
V.  Douglas  Co.,  5  Or.  280;  161,  230, 
235,  289,  304,  349,  354,  440,   503, 
504. 
Canyonville  and  Galesville  Road  Co., 
Douglas  County  Road  Co.  v.,  8  Or. 
102. 
Canyonville  and  Galesville  Road  Co. 
V.  Stephenson,  8  Or.  263;  148,  289, 
306. 
Capital  Lumbering  Co.  v.  Hall,  9  Or. 

93;  126,  278,  370,  499,  517. 
Capital  Lumbering  Co.  v.  Hall,  10  Or. 

202;  499. 
Caples  v.  Steel,  7  Or.  491;  291,399, 

510. 
Cardwcll,  Leahy  v.,  14  Or.  171. 
Carey,  Olds  v.,  13  Or.  362. 
Carey,  Sloper  and  Kelso  v.,  9  Or.  511. 
Garland  v.  Heineborg,  2  Or.  75;  63, 

246,  348,  390,  537. 
Garland,  Roberts  v.,  1  Or.  332. 
Carlile,  Corvallis  v.,  10  Or.  139. 
Carlou  V.  Dixon,  12  Or.  144;  100,  357, 

374,  499,  542. 
Carlon  v.  Dixon,  14  Or.  293;  100,  500, 

542. 
Carman  v.  Woodruflf,  10  Or.  133;  236, 
-    321,  442,  .543. 
Carney  v.  Barrett,  4  Or.  171;  22,  164, 

364,  439,  507. 
Caro  Bros.  v.  Or.  &  Cal.  R.  R.  Co.,  10 

Or.  510;  150,  538. 
Caro  and  Baum,  Smith  v.,  9  Or.  278. 
Carothers  v.  Wheeler,  1  Or.  196;  30, 

40,  240,  28-t,  286,  554. 
Carpenter,  Bagley  v.,  2  W.  T.  19. 
Carr  v.  Hard,  3  Or.  160;  40. 
Carr  v.  King  Co.,  1  W.  T.  418;  42. 
Carr,  State  v.,  0  Or.  133. 
Carroll  v.  Anderson,  2  W.  T.  366;  60. 
Carson,  Kitsap  Co.  v.,  1  W.  T.  419. 


Carson,  Davidson  v.,  1  W.  T.  307. 
Canson,  Simpson  v.,  11  Or.  301. 
Carter  v.  Chapman,  2  Or.  95;  316,  480. 
Carter  v.  Portland,  4  Or.  339;  200. 
Carter  v.  Pease,  3  Or.  293;  213. 
Carter,  Rice,  &  Co.  v.   Koshland,  12 
Or.  49';  79,  83,  165,  291|,  331,  338, 
467,  474,  495. 
Carter,  Rice,  &  Co.  v.  Koshland,  13 

Or.  615;  165,  299,  .331,  338,  476. 
Cart  Wright  v.  Savage,  5  Or.  397;  277, 

279. 
Cartwright,  Ladd  and  Bush  v. ,  7  Or. 

329. 
Cartwright,  State  v.,  10  Or.  193. 
Cascades  R.  R.  Co  v.  Sohns,  1  W.  T. 

557;  149,  231,  492,  5.34. 
Case,  Smith  v.,  2  Or.  190. 
Case  T.  M.  Co.  v.  Campbell,  14  Or. 

460;  76,  105,  107,  140,  255. 
Case,  Washburne  v.,  1  W.  T.  253. 
Cason  v.  Stone,   1   Or.  39;    160,  284, 

349. 
Cason,  Stone  v.,  1  Or.  100. 
Cassida  v.  Oregon  Railway  and  Navi- 
gation Co.,  14  Or.  5.J1 ;  424,  426,  493. 
Catlin  v.  Knott,  2  Or.  .321;  3,  324,  516. 
Catlin,  Monastes  v.,  6  Or.  119. 
Cauthorn  v.  King,  8  Or.  138;  21,  57, 

144,  330,  352,  370,  456,  407,  495. 
Caywood,  Blaksley  v.,  4  Or.  279. 
Chadwick  v.  Earhart,  11  Or.  389;  127, 

300,  437,  514. 
Chadwick,  Fleischncr  v.,  5  Or.  152. 
Chadwick  and  Brown,  State  v.,  10  Or. 

423. 
Chadwick,  State  v.,  10  Or.  465. 
Challenger,  Smith  v.,  2  W.  T.  447. 
Chambers  V.  Chambers,  4  Or.  153;  481. 
Chambers,  Zachary  v.,  1  Or.  321. 
Chapman,  Carter  v.,  2  Or.  93. 
Chapman,  Delay  v.,  2  Or.  242. 
Chapman,  Delay  v.,  3  Or.  459. 
Chapman  v.  Raleigh,  3  Or.  34;  49,  274, 

373. 
Chapman  v.  State,  5  Or.  432;  105,  129, 

235,  403,  560. 
Chapman  v.  Wilbur,  3  Or.  326;  207, 

557. 
Chapman  v.  AVilbur,  4  Or.  362;  557. 
Chapman  v.  Wilbur,  5  Or.  299;  345, 

375. 
Chapman,  Westbrook  v.,  1  W.  T.  227. 
Charlton,  Berry  v.,  10  Or.  363. 
Charman  v.  McLane,   1  Or.  339;  47, 

56,  95,  330,  445. 
Chatfield   v.   Washington   County,   3 

Or.  318;  164,  282. 
Chavener  v.  Wood,   2  Or.   182;  277, 
279,  330,  336,  339,  403,  404,  408,  446. 
Cheeney,  Garrison  r.,  1  W.  T.  489. 
Cheeny,  Keith  v.,  1  Or.  285. 


624 


Table  of  Cases. 


Chenowetli,  Abraham  v. ,  9  Or.  348. 
Chenoweth  anil  Johnson  v.^ Lewis,  9 

Or.  150;  258,  52.3,  558. 
Cherry,  Tatum  v.,  12  Or.  1.35. 
Chichester,  Cross  v.,  4  Or.  114. 
Childcrs,  Andres  v.,  14  Or.  447. 
Chipman  v.  Bronson,  3  Or.  320;  38. 
Chisholm,  Suffern  v..  1  W.  T.  48G. 
Christian  v.  Evans,  5  Or.  253;  38. 
Christian,  Evans  v.,  4  Or.  375. 
Chung  Yow  V.  Hop  Chong,  1 1  Or.  220; 

45,  02,  116,  258,  271,  288,  348,  378, 

428. 
Church,  State  v.,  5  Or.  375. 
City  Council  of  Oregon  City,  Johnson 

v.,  2  Or.  327. 
City  Council  of  Oregon  City,  Johnson 

v.,  3  Or.  13. 
City  of   Corvallis   v.    Carlile,   10  Or. 

139;  1G9,  411,  412,  540. 
City  of  Corvallis  v.  Stock,  12  Or.  391; 

32  373  522. 
City 'of  Corvaiiis,  Sellers  v.,  5  Or.  273. 
City  of  Olympia,  Hadlan  v.,  2  W.  T. 

340. 
City  of  Olympia,  Hutchinson  v.,  2  W, 

T.  314. 
City  of  Portland,  Northrop  v.,  3  Or. 

258. 
City  of  Portland,  O'Harra  v.,  3  Or. 

525. 
City  of  Portland  v.  Whittle,  3  Or.  126. 
City  of  Salem,  Wilson  v.,  3  Or.  482. 
City  of  Salem  Co.  v.  Salem  Flouring 

Mills  Co.,  12  Or.  374;  206. 
City  of  Seattle  v.  Buzby,  2  W.  T.  25; 

25,  26,  46,  61,  70,  365,  397. 
City  of  Seattle  v.  Yesler,  1  W.  T.  571. 
City  of  Seattle,  Collins  v.,  2  W.  T. 

354. 
City   of   Walla  Walla,   Moore   v.,   2 

W.  T.  184. 
Clackamas  County,  Tompkins  v.,  11 

Or.  364. 
Clark  V.  Bayley,  5  Or.  343;  273,  487, 

558. 
Clark,  Garrett  v.,  5  Or.  464. 
Clark,  State  v.,  9  Or.  466. 
Clark,  Willamette  Falls  Co.  v.,  1  Or. 

113. 
Clark's  Estate,  Weill  v.,  9  Or.  387. 
Clark's  Heirs  v.  Ellis,  9  Or.  128;  162, 

213,  .323,  573,  574. 
Clark,  Town  of  La  Fayette  v.,  9  Or. 

225. 
Clarke    County  v.    County   Commis- 
sioners, 1  W.  T.  250;  84,  .395,  476. 
Clarke  County  v.  Brazee,  1  W.  T.  199; 

1.30,  395,  531. 
Clarke  v.  Territory,  1  W.  T.  68;  170, 

187,  229,  359,  ,362,  372. 
Clatsop  County,  Kamer  v.,  6  Or.  238. 


aeek,  Prickett  v.,  13  Or.  415. 
Clifford  V.  Marsden  and  Moorhouse, 

14  Or.  426;  100,  252,  542. 
Cline  V.  Broy,  1  Or.  89;  44,  86,  367, 

369,  426. 
Cline  V.  Cline,  3  Or.  355;  457,  462. 
Ciinc  V.  Clinc,  10  Or.  474;  217. 
Cline  V.  Greenwood,  10  Or.  230;  121, 

126,  165,  .300,  328,  436,  529. 
Cline,  Greenwood  v.,  7  Or.  17. 
C.  L.  Taylor,  Barkentine,  Puget  Sound 

Conunercial  Co.  v.,  2  W.  T.  93. 
Clymer,  Port  Blakeley  Mill  Co.  v.,  1 

W.  T.  607. 
Cock  V.  Blalock,  1  W.  T.  560;  87. 
Cockran,  Crawford  v.,  2  W.  T.  117. 
Cody,  Goodman  v.,  1  W.  T.  329, 
Coffey,  Dawson  v.,  12  Or.  513. 
Coffey,  Pv-aymond  v.,  5  Or.  132. 
Coffin  V.  Coulson,  2  Or.  205;  282,  401, 

449. 
Coffin  V.  Hanner,  1  Or.  236;  53,  192. 
Coffin,  Bolilman  v.,  4  Or.  313. 
Coffin,  Hunsaker  v.,  2  Or.  107. 
Coffin,  Hanner  V.,  1  Or.  99. 
Coffin,  Moffitv.,  3  Or.  426. 
Coffin,  Pohinson  v.,  2  W.  T.  251. 
Coffman  v.  Robbins,  8  Or.  278;  142, 

431,  523,  568. 
Coggan  v.  Reves,  3  Or.  275. 
Coggan,  Barlow  and  Shepherd  v.,  1 

W.  T.  257. 
Coggins,  Tichenor  v.,  8  Or.  270. 
Cogswell  V.  Hayden,  5  Or.  22;  25,  88, 

91. 
Cogswell  V.  Oregon  and  California  R. 

R.   Co.,  6  Or.   417;   422,  425,  429, 

492. 
Cogswell  V.  Wilson,  11  Or.  371;  447. 
Cohen  v.   Ottenlieimer   and   Heilner, 

13  Or.  220;  442,  457,  458,  462. 
Cohn,  Prescott  v.,  13  Or.  200. 
Colo,  Peyser  v.,  11  Or.  39. 
Coleman  v.  Ross,   14   Or.    349;   279, 

284,  518. 
Coleman  V.  Stark,  1  Or.  115;  22,  23.3. 
Coleman,   Territory  of   Oregon  v.,   1 

Or.  191. 
Collins  V.  City  of  Seattle,  2  W.  T. 

354;  43,  47. 
Collins  v.  Delashmutt,  6  Or.  51;  140, 

142,  202,  208,  242. 
Collins  v.  King  County,  1  W.  T.  416, 

117,  150,449. 
Collins,  Teal  v.,  9  Or.  89. 
Collins  and  Condon,  King  County  v., 

1  W.  T.  469. 
Colman  v.  Yesler,   1  W.  T.  591;  36, 

39   50  272. 
Colohan,'  Shook  v.,  12  Or.  239. 
Columbia,  Steamship,  Williama  v.,  1 

W.  T.  95. 


Table  of  Cases. 


625 


Colwcll  V.  Smith,  1   W.  T.  92;    101, 

103,  322,  3J0,  4G4,  4G5,  477. 
Commissioners    of     Clarke     County, 

Clarke  County  v.,  1  W.  T.  250. 
Commissioners    of    Jackson    County. 

Weiss  v.,  8  Or.  529. 
Commissioners  of  Multnomah  County, 

White  v.,  13  Or.  317. 
Comstock,  Plymalo  v.,  9  Or.  318. 
Conger,  .Saxon  v.,  G  Or.  388. 
Conley  and  Leasure,  Sauhert  v.,  10 

Or.  488. 
Connally,  State  v.,  3  Or.  69. 
Connoly    v.    Cunningham,    2   W.    T. 

C42;  8,  IGG,  238,  339,  497,  411. 
Connoly    v.    Cunningham,    2   W.    T. 

251. 
Conway   v.   United  States,  2  W.  T. 

336;  37,  191. 
Cook  V.   Multnomah   County,    8   Or. 

170;  14G,  158,  1G2,  163,  283,  504. 
Cook   V.  Kane   and  Prentiss,  13  Or. 

482;  322,  3SG. 
Cook,  Byers  v.,  13  Or.  297. 
Cook,  Scott  v.,  1  Or.  24. 
Cook,  Spear  v.,  8  Or.  580. 
Coolcv,  Lee  v..  13  Or.  433. 
Coolidge,  Aiken  v.,  12  Or.  244. 
Coolidgc  anl  McClain  v.  Forward,  11 

Or.  118;  109,  295,  490. 
Coolidge  and  McClain  v.  Heneky,  11 

Or.  327;  295,  431. 
Coombs  V.  Davis,  2  W.  T.  466;   300. 
Cooper  V.  Blair,  14  Or.  255;  146,  442, 

443,  4G1. 
Cooper  V.   McOrew,  8   Or.   327;    99, 

115,  377,  498. 
Cooper,  Hill  v.,  6  Or.  181. 
Cooper,  Hill  v.,  8  Or.  254. 
Cooper,  Hill  v.,  10  Or.  153. 
Coos  County,  Lane  v.,  10  Or.  123. 
Corbett  v.  Washington   Territory,   1 

W.  T.  431;  171,  389,  534,  536. 
Corbett,  Turner  v.,  9  Or.  79. 
Corbitt   and   Maclcay  v.    Bauer   and 

Roemer,  10  Or.  240;  54,  391. 
Corbitt   and    Macleay  v.    Salem  Gas 

Co.,  6  Or.  405;  134,  510,  523. 
Cornelius,  State  v.,  5  Or.  46. 
't^orpe  V.  Brooks,  8  Or.  222;  125,  337, 

484,  504,  55S. 
Costello,  Xoland  v.,  2  Or.  57. 
Coulson,  Coffin  v.,  2  Or.  205. 
County  of  Multnomah,  Lannahan  v., 

3  Or.  187. 
Cowenia  v.  Hannah,  3  Or.  465;  477, 

480,  481,  555. 
Cox  V. -Smith,  10  Or.  418;    109,  276, 

321,  342,  541. 
Co.\",  Moorhouse  v.,  13  Or.  435. 
Cox,  Moorhouse  v.,  14  Or.  430. 
Cox,  Smith  v.,  9  Or.  327. 
Ok.  DIG.-40 


Cox,  Smith  v.,  9  Or.  475. 

Covote  G.  &   S.  M.  Co.  v.  Ruble,  8 

Or.  284;  147,  148,  151,  152,  243. 
Coyote  G.  &  S.  M.  Co.  v.  Ruble,  9 

Or.  121 ;  57,  507. 
Coyote  G.  &  S.  M.  Co.,  Ruble  v.,  10 

Or.  39. 
Craig  V.  Mosier,  2  Or.  323;  123,  354, 

372,  415,  537. 
Crandall  v.  Piette,  1  Or.  226;  62,  334. 
Crawford  v.  Abraham,  2  Or.  163;  157. 
Crawford  v.  Beard,   12  Or.  447;  121, 

127,  159,  295,  330,  334,  3.35,  530. 
Crawford  v.  Cockran,  2  W.  T.  117; 

23,  132,  554. 
Crawford  v.  Linn  County,  11  Or.  482; 

127,  403,  529,  532,  533,  543,  544. 
Crawford  v.  Roberts,  8  Or.  324;  21, 

28,  78,  327,  526. 
Crawford,  Morrison  v.,  7  Or.  472. 
Crawford,  Albany   and  Santiam   W. 

D.  Co.  v.,  11  Or.  243. 
Crawford  and  Harrington  v.  Haller, 

2  W.  T.  161;  36,  51,  55,  60. 
Creighton  v.  Vincent,  10  Or.  56;  525, 

526. 
Creighton,  Boehreinger  v.,  10  Or.  42. 
Creighton  v.  Leeds,  Palmer,  &  Co.,  9 

Or.  215;  340. 
Cresap  v.  Grav,  10  Or.  345;  121,  226, 

228,  329,  529. 
Cressey   v.    Tatom,    9   Or.    541;  113, 

317,  396. 
Cresson,  Dunning  v.,  6  Or.  241. 
Cresswell.  French  v.,  13  Or.  418. 
Crews  and  Snider  v.  Richards,  14  Or. 

442;  110,  237,  343,  3U. 
Crich,  Dray  v.,  3  Or.  298. 
Crosby,  Blina  v.,  2  W.  T.  109. 
Crosby,  Hodgdou  v.,  1  W.  T.  578. 
Cross   V.  Chichester,   4  Or.   114;   21, 

32,  48,  53,  56,  157. 
Crosseu  v.  Earhart,  8  Or.  370;   282, 

283. 
Crossen  v.  Wasco  County,  6  Or.  215; 

162,  326,  517. 
Crossen  v.  Wasco  County,  10  Or.  Ill; 

147,  158,  162,  163,  505. 
Crosseu,  Beezlcy  v.,  14  Or.  473. 
Crossen,  Dawson  v.,  10  Or.  41. 
Grossman  v.  Lander,  3  Or.  495. 
Crow,  Banks  v.,  3  Or.  477. 
Crow,  Desjmn  v.,  14  Or.  404. 
Crow,  Marks  &  Co.  v.,  14  Or.  382. 
Crowley  v.    State,   11   Or.    512;  371, 

505,  529. 
Cruseu,  McDonald  v.,  2  Or.  238. 
Cruzen,  McDonald  v.,  2  Or.  259, 
Cully,  Dufer  v.,  3  Or.  377. 
Cully,  Moss  v.,  1  Or.  147. 
Culver,  Gee  v.,  12  Or.  228. 
Culver,  Gee  v.,  13  Or.  598. 


626 


Table  of  Cases. 


Cunningham,    Connoly  v.,    2  W.  T. 

242. 
Cunningham,    Connoly  v.,    2  W.  T. 

251. 
Cutter  V.  Steamship  Columbia,  1  Or. 

101;  15,  426,  475. 
Cuttini?,  State  v.,  3  Or.  2G0.' 
Dacrei  Parker  v.,  2  W.  T.  .SG2. 
Dacres,  Parker  v.,  2  W.  T.  439. 
Dahnis  v.  Sears,  13  Or.  47;  72,  74,  79, 

83,  104,  145,  327,  442. 
Daisy,  Sceaaier,  Waddell  v.,  2  W.  T. 

76. 
Dale,  State  v.,  8  Or.  229. 
Dalles  Lumber  &  M.   Co.   v.  Wasco 

Woolen  M.  Co.,  3  Or.  527;  114,  148, 

382. 
Daly  V.  Multnomah  Co.,  14   Or.  20; 

118,  128,  284. 
Dalton  V.  East  Portland,  11  Or.  426; 

412,  544,  546,  548. 
Danvers  v.  Durkin,  14  Or.  37;  49,  64, 

288. 
Darlington,  Jewett  v.,   1  W.  T.  601. 
Darragh  v.  Bird,  3  Or.  229;  161,  226, 

227,   249,   353,  421,  438,  545,  547, 

548. 
Darrow,  Whitney  v.,  5  Or.  442. 
Davenport  v.  Magoon,  13  Or.  3;  378, 

560, 
David  V.  Portland  Water  Committee, 

14  Or.  98;  121,  128,  129,  413,  416, 

530,  535. 
David  V.  Waters,  11  Or.  448;  453. 
Davidson  v.    Carson,    1  W.   T.    307; 

229,  437,  531,  532,  534,  553. 
Davidson  v.  O.  &  C.  R.  R.  Co.,  11  Or. 

136;  67,  216,  422,  492,  562,  569. 
Daviner,  INIeRae  v.,  S  Or.  63. 
Davis  V.  Mason,  3  Or.   154;  2G8,  364, 

401,  456,  564. 
Davis  V.  Or.  &  Cal.  R.  R.  Co.,  8  Or. 

172;  94,  269,  285,  424,  425. 
Davis  V.  Wait,   12  Or.  425;  92,   195, 

454,  496,  515. 
Davis,  BaU'our  v.,  14  Or.  47. 
Davis,  Coombs  v.,  2  W.  T.  46S. 
Davis,  Gibbsv.,  11  Or.  288. 
Davis,  HoUaday  v.,  5  Or.  40. 
Davis,  Victor  v.,  11  Or.  4-i7. 
Dawson  v.  Coffey,  12  Or.  513;  7G,  79, 

236,  296. 
Dawson  v.  Crossen,  10  Or.  41;  76. 
Dawson  v.  Sims,  14  Or.  561;  78,  237, 

297. 
Day  v.  Kent,  1  Or.  123;  226. 
Dayton,  Sheridan,  and  Grande  Rondc 

R.  K.  Co.,  Powell  v.,   12  Or.  488. 
Dayton,  Sheridan,  and  Grande  Ronde 

R.  R.  Co.,  Powell  v.,  13  Or.  446. 
Dayton,  Sheridan,  and  Grande  Ronde 

R.  R.  Co.,  Powell  v.,  14  Or.  22. 


Dayton,  Sheridan,  and  Grande  Ronde 

il.  R.  Co.,  Powell  v.,  14  Or.  356. 
Dealey,  Foren  v.,  4  Or.  92. 
Dean  v.  Lawham,  7  Or.  422;  85,  136, 

498,  509. 
Dean,  Tolmie  v.,  1  W.  T.  46. 
Dearborn  v.  Patton,  3  Or.  420;  339, 

340,  341,  347,  446. 
Dearborn  v.   Patton,   4  Or.   58;  339, 

340,  373. 
De  Force  v.  Welch,  10  Or.  507;  486, 
Delaney,  Minto  v.,  7  Or.  337. 
De  Lashmutt  v.  Everson,  7  Or.  212; 

65,  88,  91,  239,  242,  291,  363,  370, 

456. 
De  Lashmutt  v.  Sellwood,  10  Or.  319; 

86,   212,    254,   340,   402,  408,  409, 

548. 
De  Lashmutt  v.  Sellwood,  10  Or,  51; 

48,  54. 
Delashmutt,  Collins  v.,  6  Or.  51. 
Delay  v.    Chapman,    2   Or,    242;  26, 

123,  238,  239,  534,  5.35. 
Delay  v.  Chapman,  3  Or.  459;  8,  12, 

303,  480. 
Dell  V.  Estes  and  Carter,  10  Or.  359; 

33,  27G. 
Delschueider,  White  v.,  1  Or.  254. 
Denney,  Parker  v.,  2  W.  T.  176. 
Deunison  v.  Story,  1  Or.  272;  22,  214, 

245,  246,  355,  435,  455,  516,  536. 
Denuison,  Stepheii>i  v.,  1  Or.  199. 
Denny,  City  of  Portland  v.,  5  Or.  160. 
Denny,  Parker  v.,  2  W.  T.  360. 
Derkeny  v.  Beltils,  4  Or.  258;  2,  27. 
Despain  v.  Crow,  14  Or.  404;  298,  347, 

51.2. 
Dice  V.  Willamette  T.  &  L.  Co.,  8  Or. 

60.-  94,  IW,  422. 
Dick  V.  Kendall,  6  Or.  166;  33,  53,  441, 

468,  475,  476. 
Dickv.  Wilson,  10  Or.  490;  116,  348, 

349,  351. 
Dixon,  Carlon  v.,  12  Or.  144, 
Dixon,  Carlon  v.,  14  Or.  29ri, 
Doble,  Bowles  v.,  11  Or.  474. 
Doctor  Jack  v.  Territory,  2  W.  T.  101; 

181,   183,  185,  189,   272,   31.2,  364, 

369,  372. 
Dodd  V.  Denny,  6  Or.  156;  91,   450, 

561. 
Doddv.  Dodd,  14  Or.  338;  221,  239. 
Dodge  V.  Marden,  7  Or.  456;  399,  568. 
Dodsou,  State  v.,  4  Or.  64. 
Dolan  V.  Barnard,  5  Or.  390;  122,  535, 
Dolph  V.  Barney,  5  Or.  191;  5,  27,  64, 

206,  210,  224,  238,  240,  242,  245,  247, 

257,  275,   276,    303,  336,  346,  3.50, 

436,  4S1,  484,   488,  495,  513,  533, 

548,  549. 
Dolph  V.  Nickura.  2  Or.  202;  33,  40, 

49. 


Table  of  Cases. 


CQI 


Donegan  v.  Murphy,  6  Or.  43G;   57, 

467. 
Donica,  Jloorhouse  v.,  13  Or.  435. 
Donica,  Moorliouse  v.,  14  Or.  430. 
Donis  V.  Smith,  7  Or.  2(37;  242,  424. 
Doscher  v.  Blackistou,  7  Or.  143;  19, 

255,  287. 
Doscher  v.  Blackiston,  7  Or.  403;  218, 

336,  337. 
Doty,  State  v.,  5  Or.  491. 
Dougherty,  State  v.,  4  Or.  200. 
Douglas  Co.,  Buruett  v.,  4  Or.  388, 
Douglas  Co.,  Howe  v.,  3  Or.  488. 
Douglas  Co.,  ]Minard  v.,  9  Or.  206. 
DouLrlas  County  Road  Co.  v.  Abraham, 

5  Or.  318;  161,  200,  230,  2.52,  305. 
Douglas  County  Roail  Co.  v.  Canyon- 

ville  an<l  Galesville  Road  Co.,  8  Or. 

102;  148,  162,  230,  306. 
Douglas  County  Road  Co.  v.  Douglas 

Co.,  5  Or.  373. 
Douglas  County  Road  Co.  v.  Douglas 

Co.,  5  Or.  406. 
Douglas  County  Road  Co.  v.  Douglas 

Co.,  6  Or.  299. 
Douglas  Co.,  Canyon ville  and  Gales- 
ville Road  Co.  v.,  5  Or.  280. 
Douglas   Co.,  Douglas  County  Road 

Co.  v.,  5  Or.  373. 
Douglas   Co.,  Douglas  County  Road 

Co.  v.,  5  Or.  406. 
Douglas  Co.,  Putuian  v.,  6  Or.  328. 
Douglas  County  Road  Co.,  State  v., 

10  Or.  185. 
Douglas  County  R,oad  Co.,  State  v., 

10  Or.  198. 
Douglass,  Ladeur  and  Lsaacs  v.,  1  W. 

T.  185. 
Dove  V.  Hayden,  5  Or.  500;  239,  429, 

515. 
Dove,  Jones  v.,  6  Or.  188. 
Dove,  Jones  v.,  7  Or.  467. 
Dowdell  V.  City  of  Portland,   13  Or. 

248;  321,  357,  413,   418,   544,  546, 

548. 
Drake  v.  Sears,  8  Or.  209;  194,  496, 

510,  515. 
Drake,  State  v.,  11  Or.  396. 
Drav  V.  Crich,  3  Or.   298;  330,  309, 

494. 
Dray  v.  Mayer,  5  Or.  185;  74,  98,  157, 

347. 
Drew,  Oant  v.,  1  Or.  35. 
Drewv.  Gant,  1  Or.  197;  285,  430. 
Driver   v.    McAllister,    1 W.  T.    367; 

43. 
Drouilhat  v.  Rottner,  13  Or.  493;  49. 
Ducker,  State  v.,  8  Or.  .394. 
Dufer  V.  Cully,  3  Or.  377;  24,  425. 
Dufemoy  v.    Stitzel,   3   Or.   5S;   52, 

298. 
Dunbarr,  State  v.,  13  Or.  591. 


Duncan  v.  Thomas,  1  Or.  314;  77,  96, 

98,  516. 
Dundee  Mortgage  and  Trust  Invest- 
ment Co.,  Watson  v.,  12  Or.  474. 
Duniway  Publishing  Co.  v.  Northwest 

Publishing  Co.,    11    Or.   322;   321, 

555. 
Dunn  V.  .State  University,  9  Or.  357; 

147,  441,  522,  560. 
Dunning  v.  Cresson,  G  Or.  241 ;    91, 

140,  290. 
Durkin,  Danvers  v.,  14  Or.  37;  34. 
Durham,  .Simon  v.,  10  Or.  52. 
Durham,  Minter  v.,  13  Or.  470. 
Durham  v.  Monumental  Mining  Co^ 

9  Or.  41;  152,  39.3,  .394. 
Dyke,  Gammon  v.,  2  W.  T.  266. 
Eakin  v.  McCraith,  2  W.  T.  112;  36, 

253,  332,  473,  479. 
Earhart,  Burch  v.,  7  Or.  58. 
Earhart,  Chad  wick  v.,  11  Or.  389, 
Earhart,  Crossen  v.,  8  Or.  370. 
Earhart,  Fulton  v.,  4  Or.  61. 
East  Portland,  Daltou  v.,  11  Or.  426. 
East  Portland,  Frush  v.,  6  Or.  281. 
East  Portland,  Hawthorne  v.,  12  Or. 

210. 
East  Portland,  Hawthorne  v.,  13  Or. 

271. 
East  Portland,  Heiple  v.,  13  Or.  97. 
East  Portland  v.  Multnomah  County, 

6  Or.  62;  124,  230,  305,  416,  543. 
East  Portland,  N.  P.  L.  &  M.  Co.  v., 

14  Or.  3. 
Ebey  v.  Engle  and  Hill,  1  W.  T.  72; 

156,  355,  374. 
Ebey  v.  Ebev  and  Beam,  1  W.  T.  185; 

197,  222,  4S3. 
Eddy,  Mathews  v.,  4  Or.  225. 
Edwards  v.  Perkins,   7  Or.   149;  33, 

342,  377.  ' 
Edwards  v.  Territory,  1  W.  T.  195;  2, 

165,   181,   184,   187,  365,   367,   368, 

372,  575. 
Edwards,  Steamship  Panama  v.,  1  Or, 

418;  452,  522. 
Edwards,  Wright  v.,  10  Or.  298. 
Eglin,  Baker  and   Smith  v.,    11    Or. 

333. 
Elfelt  v.  Hinch,  5  Or.  255;  124,  138, 

294,  314,  316,  440. 
Elick,  an  Indian,  v.  Washington  Ter- 
ritory, 1  W.  T.  1.36;  187,  311. 
Elkins  V.  Parrish,  8  Or.  330;  270. 
EUendale  Mill  Co.,  Smith  v.,  4  Or.  70, 
Elliot,  McCall  v.,  3  Or.  138. 
Elliott,  Holladay  v.,  3  Or.  :i40. 
EUiott,  Holladay  v.,  7  Or.  483. 
Elliott,  Holladay  v.,  8  Or.  84. 
Ellis,  Clark's  Heirs  v..  9  Or.  128. 
Ellis,  State  v.,  3  Or.  497. 
Emerson,  Boweu  v.,  3  Or.  452. 


628 


Table  of  Cases. 


Engle  and  Hill,  Ebey  v.,  1  W.  T.  72. 
English  V.  Savage,  5  Or.  518;  27,  301, 

319,  334,  337,  456,  470. 
Erpelcling,  Scheland  v.,  6  Or.  258. 
Ervin,  Jacobs  Bros,  v.,  9  Or.  52. 
Espey,  Haseltine  v.,  13  Or.  301. 
Espy  V.  Fenton,  5  Or.  423;  U,  224, 

365,  376. 
Estes  and  Carter,  Dell  v.,  10  Or.  359. 
Estes,  Stimson  v.,  3  Or.  521. 
Evans  v.  Christian,  4  Or.  375;  31,  32, 

53,  350,  503. 
Evans,  Christian  v.,  5  Or.  253. 
Evans,  McDonald  v.,  3  Or.  474. 
Evarts  v.  Steger,  5  Or.   147;  14,  98, 

114,  247,  400,  462. 
Evarts  v.  Steger,  6  Or.  55;  14,  98,  235, 

497. 
Everson,  De  Lashmutt  v.,  7  Or.  212. 
Ewing  V.  Rourke,   14  Or.   514;   322, 

556. 
Fahie,  Marker  v.,  2  Or.  89. 
Fahie  v.  Pressey,  2  Or.  23;  22,  234, 

241,  290,    313,  315,   316,  400,  404, 

439. 
Failing  v.  Osborne,  3  Or,  498;   137, 

206,  234. 
Failing,  Barrett  v.,  8  Or.  152. 
Fain  v.  Smith,  14  Or.  82;  204. 
Fairview  Milling  Co.,  Ankeny  v.,  10 

Or.  390. 
Fanning,  Richards  v.,  5  Or.  356. 
Fargher,  O'Leary  v.,  11  Or.  225. 
Fargo  V.  Benton  County  Commission- 
ers, 1  Or.  262;  98,  267. 
Fargo,  Wren  v.,  2  Or.  19. 
Farley  v.  Parker,  4  Or.  269;  224,  249, 

365. 
Farley  v.  Parker,  6  Or.  105;  130,  164, 

211,  224,  247,  254,  260,  322,  355. 
Farmer,  Newberg  and  Abrams  v.,   1 

W.  T.  182. 
Farnsworth,  Turnbull  v.,  1  W.  T.  444. 
Farnum  v.  Loomis,  2  Or.  29;  210,  222, 

241. 
Farris  v.  Hayes,  9  Or.  81;  2,  27,  116, 

235,  280,  346,  445,  482,  526,  549. 
Fassman  v.  Baumgartner,  3  Or.  469; 

31,  53,  56. 
Felgcr  v.  Robinson,  3  Or.  455;  455, 

566,  507. 
Fenton,  Espy  v.,  5  Or.  423. 
Ferguson,    Oppenheinter,  and  Oppen- 

heimer  v.  Tobey,  1  W.  T.  275;  117, 

197,  272,  392. 
Ferguson,  Holmes  v.,  1  Or.  220. 
Ferguson,  Toby  v.,  3  Or.  27;  5. 
Ferguson  and   McFadden,  Ladd  and 

Bush  v.,  9  Or.  ISO. 
Fields  V.  Lamb,  2  Or.  340;  31,  108, 

352,  498. 
Fields,  Moore  v..  1  Or.  317. 


Finch,  Hale  v.,  1  W.  T.  566. 
Finch,  Hale  v.,  1  W.  T.  517. 
Findley  v.  Hill,  8  Or.  247;  89,  541. 
Fink  V.  Canyon  Road  Co.,  5  Or.  301; 

22,  87,  148,  473. 
Finley,  Page  v.,  8  Or.  45. 
Fisk   V.  Henarie,  13  Or.  157:  104,  115, 

118,   1.36,  141,  255,  259,  454,  524. 
Fisk  V.  Henarnie,    14  Or.  29;  69,  327, 

331   442  550. 
Fiske'v.  Kelloeg,  3  Or.  503;  8,  303. 
Fitzgerald,  Wood  v.,  3  Or.  568. 
Fitzhugh,  State  v.,  2  Or.  227. 
Flanagan,  Mann  v.,  9  Or.  425. 
Flanders  v.  Ish,    2  Or.  320;    3,    453, 

458,  475. 
Fleckenstein  and  Mayer,  Bremer  v. ,  9 

Or.  266. 
Fleischner  v.    Chadwick,  5   Or.   152; 

118,  120,  124,  512,  529,  534. 
Fleischner,  Brown  v.,  4  Or.  132. 
Fleming  v.  Bills,  3  Or.  286;  111,  168, 

302,  391,  503. 
Fleschner  V.  Sumpter,   12  Or.  161;  5, 

209,  404,  410. 
Fletcher,  Sprague  v.,  8  Or.  367. 
Floyd,  Moore  v.,  4  Or.  101. 
Floyd,  Moore  v.,  4  Or.  260. 
Fook,  Guillev.,  13  Or.  577. 
Ford  V.  Kennedy,  1  Or.  166;  480. 
Ford  V.  Rickey,  2  Or.  251. 
Foredice    v.    Rinehart,    11    Or.    208; 

499. 
Foren  v.  Dealey,  4  Or.  92;  26,  453, 

458,  459. 
Forest,  Brown  Bros.  &.Co.  v.,  1  W. 

T.  201. 
Foss,  Peterson  v.,  12  Or.  81. 
Foster,  Mays  v.,  13  Or.  214. 
Foster  &  Co.,  McDearmid  v.,  14  Or. 

417. 
Foster,  Milarkey  v.,  6  Or.  378. 
Foster,  Smith  v.,  5  Or.  44. 
Foster,  Walts  v.,  12  Or.  247. 
Fowler  v.  United  States,  1  W.  T.  3; 

171,  287,  318. 
Fowler,  Boyer  v.,  1  W.  T.  101. 
Fox  V.  Washington  Territory,  2  W. 

T.  297;  47,  52,   130,  171,   191,  429, 

451,  575. 
Fox,  Baum,  &  Co.  v.  McKinney,  9  Or. 

493.  217. 
Frank  v.  Pickle,  2  W.  T.  55;  87,  411. 
Frank,  Gill  &  Co.  v.,  12  Or.  507. 
Frank,  Leverich  v.,  6  Or.  212. 
Frankel  and  Lightner,  Price,  Green,  & 

Co.  v.,  1  W.  T.  33. 
Frarey  v.  Wheeler,  4  Or.   190;   315, 

520. 
Freany  v.  Washington  Territory,    1 

W.  T.  71;  69,  191. 
Freeman,  McKay  v.,  6  Or.  449. 


Table  of  Cases. 


629 


French  v.  Cress-well,  13  Or.  41 S;  115, 

2S4,  371,  3'M\,  397,  4-21,  4S7,  55G. 
Freucli  and  Mooily,  Uuderwood  v.,  6 

Or.  OG. 
Friendly  v.   McCuUongli,  9  Or.   109; 

10(),  554. 
Friendly,  McFadden  v.,  9  Or.  222. 
Frijbie  v.  State,   1  Or.  248;  177,  387, 

661. 
Frisbie  v.  State,  1  Or.  264;  167,  297. 
Frush  V.  East  Portland,   G  Or.   281; 

135,  414,  41G,  4G9,  473. 
Friish,  Kuott  v.,  2  Or.  239. 
Frush,  Bailey  v.,  5  Or.  136. 
Fuller  &  Co.,   Richardson  v.,  2  Or. 

179. 
Fuller,  Moore  v.,  6  Or.  272. 
Fulton  V.  Earhart,  4  Or.  62;  38,  45, 

63,  246,  346,  349. 
Gage,  Nichols  v.,  10  Or.  82. 
Galbraith,  8 week  v.,  11  Or.  516. 
Gallick,  Williams  v.,  11  Or.  337. 
Galliher,  Oregon  Railway  and  Naviga- 
tion Company  v.,  2  W.  T.  70. 
Gammon  v.  Dyke,  2  W.  T.  266;  26, 

527. 
Gammons  v.  Holman,  11  Or.  284;  76, 

85. 
Gant  V.  Drew,  1  Or.  35;  284. 
Gant,  Drew  v.,  1  Or.  197. 
Gardella,  Meeker  v.,  2  W.  T.  355. 
Gardner,  Smith  v.,  12  Or.  221. 
Garrand,  State  v.,  5  Or.  156. 
Garrand,  State  v.,  5  Or.  216. 
Garrett  v.  Clark,  5  Or.  464;  376. 
Garrison  v.  Cheenev,  1  W.  T.  489;  6, 

7,  22,  35,  37,  53,  'llO,  237,  240,  475, 

476,  507,  532,  536,  539. 
Garrison  v.  Portland,  2  Or.  123;  61, 

63,  192,  360,  420. 
Garrison,  Bullene  v.,  1  W.  T.  587. 
Gas  Company,  Corbitt  and  Macleay 

v.,  6  Or.  4U5. 
Gaston  v.  McLeran,  3  Or.  389;  81,  91, 

560. 
Gaston  v.  Stott,  5  Or.  48;  485,  488. 
J^aston,  Tongue  v.,  10  Or.  328. 
Gaston  and  Furry,  Hubler  v. ,  9  Or. 

66. 
Gates,  0.  R.  N.  Co.  v.,  10  Or.  514. 
Gaunt  V.  Perkins,  8  Or.  354;  335,  344, 

373,  504. 
Gaunt,  State  v.,  13  Or.  115. 
Crauut,  Tustin  v.,  4  Or.  305. 
Gee  V.  Culver,  12  Or.  228;  29,  392. 
Gee  V.  Culver,  13  Or.  598;  262,  392. 
Gee  V.  McMdlan,  14  Or.  268;  41,  386. 
Crentry.  Reed  v.,  7  Or.  497. 
Gerdes  v.  Sears.   13  Or.  358;  79,  518. 
Gerrish   v.  Gerrish,   8  Or.  351;   531, 

573. 
Gerrioh  v.  llinmau,  S  Or.  348;  573. 


Gho  V.  Julles,  1  W.  T.  325;  139,  144, 

318  444. 
Gibbs  V.  Davis,   11  Or.  288;  83,   143, 

450,  4S9. 

Frank,   12  Or.  507;  78, 


Wasco  Co.,  14  Or.  525; 


Gill  &  Co. 

564. 
Gilliam  Co. 

159,  545. 

Gilldand,  Calhoun  v.,  2  W.  T.  174. 
Gilmore  V.  Burch,  7  Or.  374;  191,  239, 

291,  314. 
Gilmore  v.  Taylor,  5  Or.   89;  9,  252, 

275,  348,  356. 
GUtner,  Boydston  v.,  3  Or.  118. 
Gird  V.  Moorehouse,  2  Or.  53;    161, 

335. 
Gird  V.  State,  1  Or.  308;  96,  215,  552. 
Gitt  Lee,  State  v.,  6  Or.  425. 
Glasford  and  Shield    v.   Baker   and 

Cain,  1  W.  T.  224;   74,  208,  213, 

575. 
Glass,  State  v.,  5  Or.  73. 
Glaze  V.  Lewis,  12  Or.  347;  108,  342, 

353,  374. 
Glaze  V.  Whitley,  5  Or.  164;  61,  261, 

36.3,  364,  391,  ,576. 
Gleason  v.  Van  Aerman,  9  Or.  343;  3, 

29,  235,  447. 
Glenn  v.  Savage,  14  Or.  567;  23,  65, 

77,  80,  84,  134,  337,  338,  364,  365, 

502. 
Glenn,  Savage  v.,  10  Or.  440. 
Glisan,  Heath  v.,  3  Or.  64. 
Goddard  v.  Parker,   10  Or.  102;  101, 

102,  243,  249,   251,   254,  264,  267, 

431. 
Gold  Hill  Mining  Co.  v.  Ish,  5  Or. 

104;  230,  399,  479,  488. 
Goldsmitli,  In  re,  12  Or.  414;  34,  76. 

353. 
Goldsmith  v.  Brown,  5  Or.  418;  95, 

129,  390. 
Goldsmith  v.  Revenue  Cutter,  6  Or. 

250;  94,  273,  350,  383,  441. 
Goldsmith,  Walker  r.,  7  Or.  161. 
Goldsmith,  Walker  v.,  14  Or.  125, 
Gong  Choy,  Ali  Lep  v.,  13  Or.  429. 
Gong  Clioy,  Ah  Lep  v.,  13  Or.  205. 
Gong  Wing,  Ah  Lep  v.,  13  Or.  205. 
Goodall  v.  State,  1  Or.  333;  182,  183, 

262,  265,  308,  362. 
Goodman  v.  Cody,  1  W.  T.  329;  368, 

372. 
Goodman  v.  Myrick,  5  Or.  65,  101. 
Goodtime,  Johnson  v.,  1  W.  T.  484. 
Goodwin  v.  Baruhart,  1  Or.  215;  300. 
Goodwin  V.  Morris,  9  Or.  322;  113, 

526. 
Gordon,  Locks  and  Canal  Commiaaion- 

ers  v.,  6  Or.  175. 
Gore,  Hendrix  r.,  8  Or.  406. 
Gotfrey,  Odell  v.,  13  Or.  466. 


630 


Table  of  Cases. 


Gove  V.  Moses,  1  W.  T.  7;  15,  23,  95, 

328,  397,  427,  428,  442. 
Graham  v.  Meek,  1  Or.  325;  210,  241, 

315. 
Graham,  Singer  Mfg.  Co.  v.,  8  Or.  17. 
Granger  Market  Co.  v.  Vinson,  6  Or. 

172;  151. 
Grange  Union  v.  Burkhart,  8  Or.  51; 

9. 
Grant  v.  Baker,  12  Or.  329;  307, 423, 

424,  425,  430. 
Grant,  Hamburger  v. ,  8  Or.  181. 
Grant,  Leonard  v.,  S  Or.  276. 
Grant,  Page  &  Co.  v.,  9  Or.  116. 
Grant,  State  v.,  7  Or.  414. 
Grant  Co.  v.  Sels,  5  Or.  243;  124,  J  58, 

164,  402,  534. 
Grant  Co.,  Pruden  v.,  12  Or.  308. 
Gratton,  Normandin  v.,  12  Or.  505. 
Gi-aves,  Osborn  v.,  11  Or.  526. 
Gray  v.  Holland,  9  Or.  512;  316,  317, 

526,  541. 
Gray,  Cressop  v.,  10  Or.  345. 
Gray  and  De  Lashmutt,  Sellwood  v. , 

11  Or.  534. 
Gray  don  v.  Tlaomas,  3  Or.  250;  159, 

330,  334,  343. 
Greenwood  v.  Cline,   7  Or.   17;  248, 

269,  291,  572,  573. 
Greenwood,  Cline  v.,  10  Or.  230. 
Greenwood,  Newsom  v.,  4  Or.  119. 
Griffin  V.  Pitman,  8  Or.  342;  115,  141, 

344,  373,  428,  434. 
Griffin,  Nichols  v.,  1  W.  T.  374. 
Griswold  V.  Stoughton,  2  Or.  61;  275, 

277,  279,  345,  516,  533. 
Griswold,  Smith  v.,  6  Or.  440. 
Groslouis  V.  Northcut,  3  Or.  394;  216, 

218,  246,  336,  346,  349,  469,  480. 
Groves,  Robertson  v.,  4  Or.  210. 
Grover,  State  v.,  10  Or.  66. 
Guille  V.  Took,  13  Or.  577;  30,  499, 

500. 
Guthrie  v.  Imbrie,  12  Or.  182;  23,  92, 

150,  259,  513. 
Gutlirie  V.  Thompson,  1  Or.  353;  202, 

256,  522,  550. 
Guye,  Say  ward  v.,  2  W.  T.  420. 
Habersham  V.  Sears,  11  Or.  431;  100, 

275,  278,  393,  394,  516. 
Hacheny  v.  Leary,  12  Or.  40;  87,  149, 

324. 
Haekett  v.  Multnomah  R'y  Co.,  12 

Or.  124;  3,  74,  149,  447,  549. 
Haokett  v.  Wilson,  12  Or.  25;  74. 
lladlan  v.  Ott,  2  W.  T.  165;  197,  333, 

378,  457,  472. 
^Hadlan  v.    Olympia,   2   W.   T.    340j 

389,  414. 
Hadley,  Hcathcrly  v.,  2  Or.  117. 
Hadley,  Heatherly  v.,  2  Or.  269. 
Hauley,  Heatherly  v.,  4  Or.  1. 


Hagui,  Hollister  v.,  3  Or.  319. 
Haines  v.  Welch,  14  Or.  319;  381,  566, 

570. 
Hale  V.  Finch,  1  W.  T.  566;  138,  259. 
Hale  V.  Finch,  1  W.  T.  517;  329,  332, 

345,  402,  475,  495,  532,  554. 
Hale,   Oregon  Steam  Nav.  Co,  v.,   1 

W.  T.  2S3. 
Hale,  Harmon  v.,  1  W.  T.  422. 
Hale,  State  v.,  12  Or.  352. 
Haley,  Wliiteaker  v.,  2  Or.  128. 
Hall  V.  Hall,  9  Or.  452;  217,  218,  220. 
Hall,  Capital  Lumbering  Co.  v. ,  9  Or. 

93. 
Hall,   Capital  Lumbering  Co.   v.,   10 

Or.  102. 
Hall,  Scoggin  v.,  12  Or.  372. 
Haller,  Crawford  and  Harrington  v., 

2  W.  T.  161. 
Hallock  V.  Portland,  8  Or.  29;  30,  62, 

63,  427,  473. 
Hamburger  v.  Grant,  8  Or.  181;  295. 
Hamer,  Pulse  v.,  8  Or.  251. 
Hamilton  v.  Hirsch,  2  W.  T.  223;  222. 
Hamlin  v.   Kinney,  2  Or.  91;  13,  96, 

108,  163,  353,  463,  540. 
Hancock  v.  Stewart,  1  W.  T.  323;  37, 

339,  345,  553. 
Hannah  v.   Shirley,  7  Or.  115;    135, 

257. 
Hannah  v.  Wells,  4  Or.  249;  98,  114, 

173,  215. 
Hannah,  Cowenia  v.,  3  Or.  465. 
Hannah,  Pease  v.,  3  Or.  301. 
Hannah,  McCown  v.,  3  Or.  302. 
Hanner  v.    Silver,  2  Or.   336;  8,   13, 

113,  161,  303,  353,  445. 
Hannor,  Jennings,  &  Co.  v.  Coffin,  1 

Or.  99;  71,  329,  496. 
Hanner,  Jennings,  &  Co.,  Coffin  v.,  1 

Or.  236. 
Harden,  Cain  v.,  1  Or.  360. 
Harding,  Harper  v.,  3  Or.  361. 
Harker  v.  Faliie,  2  Or.  89;  239,  466. 
Harlier,  Kamm  v. ,  3  Or.  208. 
Harker,  Wellman  v.,  3  Or.  253. 
Harlow  and   Page,    Bank   of   British 

Columbia  v.,  9  Or.  338. 
Harmon  v.   Hale,  1  W.  T.   422;   89, 

541,  542. 
Harned,  Hurford  v.,  6  Or.  362. 
Harper  V.  Harding,  3  Or.  361;  504. 
Harper,  Brown  v.,  4  Or.  89. 
Harrah,  Wheeler  v.,  14  Or.  325. 
Harrington  v.  La  Rocquc,  13  Or.  344; 

15,  74,  299,  347,  450. 
Harrington  v.   Watson,    11    Or.    143; 

288,  377. 
Harrington,  Summers  v.,  14  Or.  480. 
Harris,  Ryan  v.,  2  Or.  175. 
Harris,  Multnomah  St.  R'y  Co.  v.,  13 

Or.  198. 


Table  of  Cases. 


631 


Harris,  Smith  v.,  7  Or.  76. 
Harris,  State  v.,  14  Or.  365. 
Harrison  v.  Waklron,  2  Or.  87. 
Hart  V.  Territory,  1  Or.  122;  61,  360. 
Hartigan  v.  Territory,  1  W.  T.  447; 

46,  68,  188,  191,  244,  265,  362,  368. 
Hartless,  Philomath  College  v.,  6  Or. 

1.^8. 
Harty  v.  Latld,  3  Or.  353;  5,  257. 
Harvey,  Koiiigsbcrger  v.,  12  Or.  286. 
Harvey,  Oliver  v.,  5  Or.  360. 
Harvey's  Heirs  v.  Wait,  10  Or.  117; 

10,  33,  164,  336,  337. 
Haseltino  v.  Espey,  13  Or,  301;  209, 

296,  404,  410. 
Hass  v.  Sodlak,  9  Or.  463;  212,  315, 

317,  537,  5.38. 
Hass,  Schneider  v.,  14  Or.  174. 
Hatcher  V.  Briggs,  6  Or.  31;  27,  211, 

238,  301,  386,  431,  445. 
Hathaway  v.  Meads,  11  Or.  66;  87, 

325,  560. 
Hawley   v.  Kenoyer,    1   W.   T.   609; 

137,   138,   139,    143,  509,  511,   524, 

551. 
Hawley,  Shepherd  v.,  4  Or.  206. 
Hawley,  Thompson  v.,  14  Or.  199, 
Hawley  and  Dodd  v.  Bingham,  6  Or. 

76;  91,  137. 
Hawley,   Dodd,  &  Co.  v.   Jette  and 

Clark,  10  Or.  31;  87,  90. 
Hawn,  Hurst  v.,  5  Or.  275. 
Hawthorne  v.  East  Portland,  12  Or. 

210;  48,  287. 
Hawthorne  v.  East  Portland,  13  Or. 

271;  243,  412,  413,  418,  544,  547. 
Hawthorne,  Besser  v.,  3  Or.  129. 
Hawthorne,  Besser  v.,  3  Or.  512. 
Hayden  v.  Long,  8  Or.  244;  45,  65, 

66,  361,  365,  568. 
Hayden  v.  Steadman,  3  Or.  550;  114, 

523. 
Hayden  v.  Way  mire,  10  Or.  367;  4, 

155. 
Hayden,  Cogswell  v.,  5  Or,  22, 
Hayden,  Dove  v.,  5  Or.  500. 
Hayes,  State  v.,  2  Or.  314. 
.^^ayes  v.  Territory,  2  W.  T.  286;  132, 

298,  314,  533. 
Hayes,  Far r is  v.,  9  Or.  81. 
Hays  V.  Miller,  1  W.  T.  143;  332,  338. 

341,   345,  404,   407,  475,  495,  519, 

532. 
Hays  V.  Parker,  2  W.  T.   198;   226, 

479,  489. 
Hays  autl  Kennedy,  Lewis  Covmty  v. , 

1  W.  T.  109. 
Hazard's  Appeal,  9  Or.  366;  215,  283, 

484. 
Hazard  v.  Maxon,  1  W.  T.  584;  93, 

137,  325. 
Hazard,  Brown  v.,  2  W,  T.  464, 


Heath  v.  Glisan,  3  Or.  64;  192,  193, 

260,  364,  421,  423,  451. 
Heatherly  v.  Hadley,   4  Or.    1;    110, 

234,  241,  336,  343,  340,  350,  456, 

494,  537. 
Heatherly  v.  Hadley,  2  Or.  117;  49, 

53,  56. 
Heatherly  v.  Hadley,  2  Or.  269;  26, 

330,  336,  453,  537. 
Healner,  Prcscott  v.,  13  Or.  200, 
Heatlcy,  Kinney  v.,  13  Or.  35. 
Hedges  v.    Paquett,    3   Or.   77;    150, 

234,  239,  290,  363. 
Hedges  V.  Strong,  3  Or.  18;  113,  133, 

150,  246,  43.3,  448,  464,  522. 
Hcilner,  Cohen  v.,  13  Or.  220. 
Heilner  &  Co.  v.  Union  County,  7  Or. 

83;  103,  115,  421,  42.3,  431,  506. 
Hcilner,  Manaudas  v.,  12  Or.  335. 
Heineborg,  Carland  v. ,  2  Or.  75. 
Heiple  v.  East  Portland,   13  Or.  97; 

201,  307,  417. 
Hellman,  McCullough  v.,  8  Or.  191. 
Hembree,  Warren  v.,  8  Or.  118, 
Henarie,  Fiskv.,  13  Or.  156. 
Henarie,  Fisk  v.,  14  Or.  29, 
Henderson  v.  Morris,  5  Or.  24;  63,  04, 

256,  459,  561. 
Henderson,  Morgan  v.,  2  W.  T.  367. 
Hendricks,  Lennox  v.,  11  Or.  33. 
Hendrix  v.  Gore,  8  Or.  406;  29,  403, 

406,  450,  515. 
Hcndryx,  Morrow  Co.  v.,  14  Or.  397. 
Heneky  v.  Smith,  10  Or.  349;  61,  73, 

194,  251,  258,  262,  270. 
Heneky,  Coolidge  and  McClain  v.,  11 

Or.  118. 
Heneky,  Coolidge  and  McClain  v. .  1 1 

Or.  337;  251. 
Henkle,  Breon  v.,  14  Or.  494. 
Herbert,  Knowles  v.,  11  Or.  54. 
Herbert,  Knowles  v. ,  1 1  Or.  240. 
Hexter  v.  Schneider,  14  Or.   184;  69, 

278,  279,  280,  370,   371,  442,  458, 

400,  499,  500,  517,  518,  559. 
Hey  wood,  Territory  v.,  2  W,  T.  180, 
Hibernia  S.  &  L.  A.,  State  v.,  8  Or. 

396. 
Higgins,  King  v.,  3  Or.  406. 
Higley,  Ladd  v.,  5  Or.  296. 
Hildebrand   v.    Bloodsworth,    12   Or. 

75;  134,  136,  300. 
Hill  V.   Cooper,  6  Or.   181;   27,  202, 

211,  238,  502,  520. 
Hill  V.  Cooper,  8  Or.  254;  225,  346, 

398,  502,  558. 
Hillv.  Cooper,  10  Or.  153;  398, 
Hill  V.  Mellon,  3  Or.  542;  561. 
Hill   V.    Territory   ex   rol.    Evans,    2 

W.  T.  147;  132,  438,  491. 
Hill,  Findley  v.,  8  Or.  247. 
Hill,  Maynard  v..  2  W,  T.  321. 


632 


Table  of  Cases. 


Hill,  Oregonian  R'y  Co.  v.,  9  Or.  377. 

Hill,  Swift  v.,  14  Or.  59. 

Hillman  v.  Shannahan,  4  Or.  163;  74, 

98. 
Hindi,  Elfelt  v.,  5  Or.  255. 
Hinraan  v.  Warren,  6  Or.  408;  101, 

485,  567. 
Hinman,  Gerrish  v.,  8  Or.  348. 
Hirsch,  Allen  v.,  8  Or.  412. 
Hirsch,  Hamilton  v.,  2  W.  T.  223. 
Hoback,  StoU  v.,  2  Or.  225. 
Hobin,  Nicklin  v.,  13  Or.  406. 
Hodges,  Ko:;ic  v.,  1  Or.  251. 
Hodges  and  Wilson  v.  Silver  Hill  M. 

Co.,  9  Or.  200;  126,  152,  153,  270, 

275   323. 
Hodghon  v.   Crosby,   1   W.    T.   578; 

293. 
Hogan  V.  Wyman,  2  Or.  302;  8,  12, 

557,  572. 
Hogue  V.  Sheriff  of  Lewis  County,  1 

W.  T.  \12;  386,  387. 
Hogue,  Lay  ton  v.,  5  Or.  93. 
Holbrook  v.  Page,  3  Or.  374;  457. 
Holcomb  V.  JNIooney,  13  Or.  503;  225, 

237   259  401. 
Holcomb  V.  Teal,  4  Or.  352;  21,  45, 

48. 
HoUaday  v.  Davis,  5  Or.  40;  22,  114, 

440,  491,  557. 
HoUaday  v.   Elliott,  3  Or.   340;  81, 

440,  459,  463,  406,  471. 
HoUaday  v.  EUiott,  7  Or.  483;  33,  41. 
HoUaday  v.   Elliott,   8  Or.   84;  147, 

152,  446. 
HoUaday  v.    HoUaday,   13   Or.    523; 

29G,  410,  551,  559,  561. 
HoUaday  v.  Patterson,  5  Or.  177;  138, 

142,  491. 
HoUaday,  Bowman  v.,  3  Or.  182. 
HoUaday,  Olds  v.,  13  Or.  302. 
Holland,  Kaiiim  v.,  2  Or.  59. 
Holland,  Gray  v.,  9  Or.  512. 
HoUister  v.  Hagui,  3  Or.  319;  154. 
Hohnan,  Gammons  v.,  11  Or.  284. 
Holmes  v.  Ferguson,  1  Or.  220;  208, 

210,  240,  382,  408. 
Holmes  v.  School  District,  11  Or.  332; 

546. 
Holstine  v.  Oregon  &  Cal.  R.  R.  Co., 

8  Or.  163;  269,  424,  425,  492. 
Honeyman  v.    Oregon  &  Cal.  R.  R. 

Co.,  13  Or.  352;  112,  493,  562. 
Hoover,  McLaughlin  v.,  1  Or.  31. 
Hoover,  Wdlis  v.,  9  Or.  418. 
Hop  Chung,  Chuug  Yow  v.,   11  Or. 

220. 
Hopwood  v.  Patterson,  2  Or.  491;  26, 

469. 
Horn(  r  v.  State,  1  Or.  267;  167,  531. 
Horrell  v.  Manning,  6  Or.  413;  115, 

290,  291. 


Horsley,  Roy  v.,  6  Or.  270. 
Horsley,  Roy  v.,  6  Or.  382. 
Hortou  V.  King  County,  1  W.  T.  517. 
Hosford  V.  Logua,  13  Or.  130;  34,  49, 

54,  58. 
Host,  Lewis  v.,  2  W.  T.  402. 
Houghton  and  Palmer  v.  Beck,  9  Or. 

325;  27,  370,  374,  453,  459. 
Hovenden  v.  Knott,  12  Or.  267;  236, 

407,  542. 
Howard  v.  Bamford,  3  Or.  565;  393, 

512. 
Howard,  Burkhart  v.,  14  Or.  39. 
Howard,  Burmeister  v.,  1  W.  T.  207. 
Howe  V.  Douglas  County,  3  Or.  488; 

282. 
Howe  V.   Patterson,  5  Or.   353;  56, 

474. 
Howe  V.  Taylor,  6  Or.  284;  99,  160, 

234,  2.35,  390,  436,  526. 
Howe  V.  Taylor,  9  Or.  288;  99,   160, 

194,  248,   250,  258,  270,  390,  409, 

436. 
HoweUv.  State,   1  Or.  241;  55,  185, 

189,  369,  378,  494. 
Hoxie  V.  Hodges,  1  Or.  251;  61,  256, 

326. 
Hoxterv.  Poppleton,  9  Or.  481;  280, 

431. 
Hoyt,  State  v.,  2  Or.  246. 
Hubbard  v.   Hubbard,  7  Or.  42;  65, 

133,   102,  291,  337,  354,   472,  571, 

573,  577. 
Hubljard,  Phinny  v.,  2  W.  T.  369. 
Hubler  v.  Gaston  and  Furry,  9  Or.  66j 

136,  509. 
Huff,  Brobackv.,  11  Or.  395. 
Huffman  v.  McDaniel,  1  Or.  259;  62, 

370,  461,  554. 
Hughes  V.  Oregonian  R'y  Co.,  11  Or. 

158;  148,  273,  299. 
Hughes  V.  Oregon  R'y  &  Nav.  Co.,  11 

Or.  437;  95,  100,  134,  143,  327,  442. 
Hughes  V.  Walker,  14  Or.  481;  450, 

502. 
Hughes,  Matasce  v.,  7  Or.  39. 
Hugill  V.    Kinney,    9  Or.   250;  243, 

506. 
Huliu,  State  v.,  2  Or.  306. 
Humason,  Bloomficld  v.,  11  Or.  229. 
Hume  V.  Norris,  5  Or.  478;  72,  85, 

120,  517. 
Hume,  Paddock  v.,  6  Or.  82. 
Humo,  Shively  v.,  10  Or.  76. 
Hume,  State  v.,  12  Or.  133. 
Humeston,  Merchant  v.,  2  W.  T.  433. 
Humphreys  v.  Taylor,  5  Or.  260;  9, 

13,  14,  572. 
Hunsaker  v.  Coffin,  2  Or.  107;  274, 

334,  345,  536. 
Hunsaker  v.  Lownsdale,  2  Or.   107; 

341. 


Table  of  Cases. 


633 


Huntington   v.    Blakeney,    1   W.   T. 

Ill;  157.  332. 
Huntington,  Todd  v.,  13  Or.  9. 
Hurd  V.  Moore,  2  Or.  85;  113,  519. 
Hurd,  Carr  v.,  3  Or.  161. 
Hurford  v.  Hamod,  6  Or.  362;  211, 

247.  257,  291,  403. 
Hurst  v.  Burnsi<lo,  12  Or.  520;  65,  68, 

83,  365,  425,  472,  577. 
Hurst  V.  Hawn,  5  Or.  275;  211,  290, 

4S4,  5:u. 
Hussey,  Monroe  v.,  1  Or.  ISS. 
Hutchinson   v.    City  of    Olympia,    2 

W.  T.  314;  198,  415,  417,  420,  423, 

436. 
Hutchinson,  Shartle  v.,  3  Or.  337. 
Hyland  v.  Blodgett,   9  Or.    166;  87, 

554. 
Imbrie,  Guthrie  v.,  12  Or.  182. 
Imbrie,  Lee  v.,  13  Or.  510. 
Ingles,  Smith  v.,  2  Or.  43. 
In  re  Goldsmith,  12  Or.  414;  34,  76. 
In  re  Leonard,  12  Or.  93. 
In  re  Moore,  1  Or.  179. 
Invcrarity  v.  Stowell,  10  Or.  2G1;  33, 

67,  383. 
Isaacs,  Rohr  v.,  8  Or.  451. 
Ish,  Flanders  v.,  2  Or.  320. 
Ish,   Gold  Hill  ilining  Co.  v.,  5  Or. 

104. 
Ison,  Claim  for  Fees,  6  Or.  465;  82,  99, 

215,  283,  287,  406,  4S4. 
Isthmus  Transit  11.  R.  Co.,  Luce  v., 

6  Or.  125. 
Jack,  Doctor,  Washington  Territory 

v.,  2  W.  T.  101. 
Jackson  v.  Jackson,  8  Or.  402;  220. 
Jackson  v.   New   Idrian   C.  M.  Co., 

10  Or.  157;  450,  456. 
Jackson  v.  Sharflf,  1  Or.  246;  62,  267, 

561. 
Jackson  v.  Siglin,  10  Or.  92;  139,  160, 

278,  283,  531. 
Jackson  v.  Trullinger,  9  Or.  593;  208, 

223,  399. 
Jackson,  Burston  r. ,  9  Or.  275. 
Jackson,  State  v.,  9  Or.  457. 
Jackson  County,  Weiss  v.,  9  Or.  470. 
'Jacobs  V.  McCallej^  8  Or.  124;  105. 
Jacol)3,  State  v.,  11  Or.  314. 
Jacobs  Bros.  v.  Ervin,  9  Or.  52;  75, 

105,  295. 
Jacobsen  v.  Jacobsen,  11  Or.  454;  216, 

527. 
Jacobsen  v.   Siddal,  12  Or.  280;  166, 

259,  271,  396,  4.30. 
Jame-s,.  Stile. i  v.,  2  W.  T.  194. 
Jameson,  Wingard  v.,  2  W.  T.  402. 
Jamieson,   Sweeney  v.,  2  W.  T.  254. 
Janion  &  Co.,  Watson  v.,  6  Or.   137. 
JeflFerson    Street    Ferry   Ca,    Knott  j 

Bros,  v.,  9  Or.  530.  j 


Jenkins,  Moser  v.,  5  Or.  447. 
Jenkin.s,  Stark  v.,  1  W.  T.  421. 
Jenkins,  Taylor  v.,  11  Or.  274. 
Jennings  v.  Bartels,  2  W.  T.  .306;  37. 
Jennings  v.  State,  1  Or.  290;  240. 
Jette    V.    Pickard,    4    Or.    296;    481, 

572. 
Jette  and  Clark,  Hawley,  Dodd,  &  Co. 

v.,  10  Or.  31. 
Jewettv.  Darlington,    1  W.   T.   601; 

253,  287,  385. 
J.  I.  Case  T.  M.  Co.  v.  Campbell,  14 

Or.  460. 
Johns   V.   Marion  County,  4   Or.  46: 

161,    304,   313,  348,  349,  350,  354, 

356,  503. 
Johnson  v.  Arrigoni,  5  Or.  485;  88. 
Johnson,  Arrigoni  v.,  0  Or.  167. 
Johnson  v.    City  Council   of   Oregon 

City,  2  Or.  327;  13,  545. 
Johnson  v.    City   Council   of  Oregon 

City,  3  Or.  13;  13,  515,  546. 
Johnson  v.  Goodtime,   1  W.  T.  484; 

333,  3G0,  474. 
Johnson  V.  Knott,  13  Or.  308;  20,  102, 

224,  261,  487,  527,  567,  569. 
Johnson  v.  McGinniss,   1  Or.  292;  6, 

402,  480. 
Johnson  v.  Oregon  Steam  Nav.  Co.,  8 

Or.  35;  115,  144. 
Johnson  v.  Shively,  9  Or.  333;  61,.  66, 

212,  363,  370. 
Johnson,  State  v.,  2  Or.  115. 
Johnson,  Baldock  v.,  14  Or.  542. 
Johnson,  State  v.,  7  Or.  210. 
Johnson,  Van  Winkle  v.,  11  Or.  4G9. 
Johns,  Whitney  v.,  3  Or.  533. 
Jones  V.  Dove,  6  Or.   188;  254,  257, 

571,  572. 
Jones  V.  Dove,  7  Or.  467;  243,   254, 

257,  276,  279,  377,  572. 
Jones  V.  Kearns,  11  Or.  280;  264. 
Jones  V.  Snider,  8  Or.   127;  38,  370, 

498. 
Jones  V.  Wiley,  1  W.  T.  603;  31,  46, 

348,  427,  428,  429. 
Jones,  Bentley  v.,  7  Or.  108. 
Jones,  Bentley  v.,  8  Or.  47. 
Jones,  Briscoe  v.,  10  Or.  261. 
Jordon,  Neppach  v. ,  13  Or.  246 
Joy  v.   Stump,   14   Or.   361;    19,    20, 

102,  226,  432,  465. 
Joyce,  Besser  v.,  10  Or.  310. 
JuUes,  Cho  v.,  1  W.  T.  325. 
Justas,  Nurse  v.,  6  Or.  75. 
Justus,  State  v.,  11  Or.  178. 
Kafka  v.  Simon,  3  Or.  555;  514. 
Kahn  v.  Love,   3  Or.  206;  376,  423, 

425. 
Kaler  v.  Campbell,   13  Or.  596;  570. 
Kamer  v.  Clatsop  County,  6  Or.  238; 

305,  313,  552. 


634 


Table  of  Cases. 


Kamm  v.  Harker,  3  Or.  208;  1,  .S27, 

440,  446. 
Kamm  v.  Holland,  2  Or.  59;  88,  89, 

90. 
Kamm,  City  of  Portland  v.,  5  Or.  362. 
Kamm,    City  of  Portland  v.,  10  Or. 

383. 
Kamm,  Mclntyi-e  v.,  12  Or.  253. 
Kamm,  Strong  v.,  13  Or.  172. 
Kane,  Cook  v.,  13  Or.  482. 
Keach,  Meigs  v.,  1  W.  T.  305. 
Kearney  v.    Snodgrass,    10  Or.    181; 

366,  447. 
Kearney  v.  Snodgrass,  12  Or.  311;  30, 

45,  46,  62,  348,  366,  427,  428,  447, 

471. 
Keai-ns,  Jones  v.,  11  Or.  280. 
Keith  V.  Cheeny,  1  Or.  285;  224,  253, 

480,  488. 
Keith  V.  Quiuney,  1  Or.  364;  531,  536. 
Keith,  Wilcox  v.,  3  Or.  371. 
Keith,  Strang  v.,  1  Or.  312. 
Kellogg  V.   Haddocks,   1  W.  T.  407; 

502. 
Kellogg,  Fiske  v.,  3  Or.  503. 
Kelly  V.  People's  Ti-ans.    Co.,  3  Or. 

189;  148,  154,  210,  234,  241,  289. 
Kelly  V.  Iluhle,  11  Or.  75;  150,  386, 

524  558 
Kelly',  Adams  v.,  2  W.  T.  263. 
Kelly,  Pease  v.,  3  Or.  417. 
Kelly,  Phipps  v.,  12  Or.  213. 
Kelly  &  P.  T.  Co.,  Willamette  Falls 

Canal  &  L.  Co.  v.,  3  Or.  99. 
Kendall  v.    McFarland,    4    Or.   292; 

274,  383. 
Kendall  V.  Post,  8  Or.  141;  125,  162, 

194,  306,  320.  354,  360,  506. 
Kendall,  Dick  v.,  6  Or.  166. 
Kennard  v.  Sax,  3  Or.  263;  2,  26,  28, 

2.34,  315,  316,  343,  440. 
Kennedy,  Ford  v.,  1  Or.  166. 
Kennedy,  Smith  v.,  1  W.  T.  55. 
Kennedy,  Spaulding  v.,  6  Or.  208. 
Kennoyer,  Hawley  v.,   1  W.  T.  609. 
Kent,  Day  v.,  1  Or.  153. 
Kenworthy  v.  Merritt,  2  W.  T.   155; 

30,  93,  259,  404,  511,  552. 
Kenyon   v.   Knipe,   2  W.  T.  422;  6, 

213. 
Kctchum  V.   State,   2  Or.   103;  461, 

525. 
Kcyes  v.   Mooney,   13  Or.   179;  251, 

329,  494,  496,  552. 
King  V.  Benton  Co.,  10  Or.  512;  306, 

3U7. 
King  V.  Boyd,    4  Or.   326;    13,    114, 

350,  440,  462. 
King  V.  City  of  Portland,  2  Or.  146; 

122,  2.34,  416,  543. 
King  V.  Higgins,  3  Or.  406;  109,  333, 

400. 


King  V.  Voos,  14  Or.  91;  293,  314. 

King,  Can  thorn  v.,  8  Or.  138. 

King,   Knapp  and  Barrell  v.,  6  Or. 

243. 
King,  Pratt  v.,  1  Or.  49. 
King,  Smith  v.,  14  Or.  14. 
King,  Territory  v.,  1  Or.  106. 
King  Co.   V.   Collins  and  Condon,   1 

W.  T.  469;  59,  156,   159,  253,  449. 
King  Co.  V.  Neely,  1  W.  T.  241;  35, 

308. 
King  Co.,  Carr  v.,  1  W.  T.  418. 
King  Co.,  Collins  v.,  1  W.  T.  416. 
King  Co.,  Horton  v.,  1  W.  T.  517. 
Kinnear,  Washington  Mill  Co.  v.,  1 

W.  T.  99. 
.Kinney,  Hamlin  v.,  2  Or.  91. 
Kinney  v.  Heatley,   13  Or.  35;  3,  4, 

76,  155,  293,  559. 
Kinney,  Hngill  v.,  9  Or.  250. 
Kirk   V.   Matlock,   12   Or.  319;    116, 

371,  374,  460,  469,  499. 
Kirk,  State  v.,  10  Or.  505. 
Kitclierside  v.  Myers,  10  Or.  2L;  236, 

462,  487,  490. 
Kitsap  Co.  V.  Carson,   1  W.  T.  419; 

159,  443. 
Klippel,  Manning  v.,  9  Or.  367. 
Knapp,  Misner  v.,  13  Or.  135. 
Knapp,  Tichenor  v. ,  6  Or.  205. 
Knapp  and  Burrell  v.   King,   6  Or. 

245;  330,  355,   365,  373,   441,   537, 

538. 
Knighton  v.   Smith,  1   Or.  276;  139, 

202,  251,  533. 
Knighton,  Williams  v.,  1  Or.  234. 
Knipe,  Kenyon  v.,  2  W.  T.  422. 
Knott,  Catlin  v.,  2  Or.  321. 
Knott  V.  Frush,  2  Or.  237;  285. 
Knott  V.  Knott,  6  Or.   142;  257,  285, 

446,  523,  558. 
Knott  V.  Knott,  6  Or.  334;  441,  473. 
Knott  V.  Shaw,  5  Or.  482;  340. 
Knott,  Stephens  v.,  2  Or.  304. 
Knott  V.  Stephens,  3  Or.  269;  446,  520. 
Knott  V.  Stephens,  5  Or.  235;  74,  140, 

202,  501,  520. 
Knott  Bros.  v.  Jelferson  Street  Ferry 

Co.,  9  Or.  530;  102,  200,  286. 
Knott,  Andrus  v.,  12  Or.  501. 
Knott,  Hovenden  v.,  12  Or.  267. 
Knott,  Johnson  v.,  13  Or.  308. 
Knott,  Lahcy  v.,  8  Or.  198. 
Knott,  Moore  v.,  12  Or.  260. 
Knott,  Moore  v.,  14  Or.  35. 
Knott,  Multnomah  Co.  v.,  6  Or.  279. 
Knott,  Price  v.,  8  Or.  438. 
Knott,  Stephens  v.,  3  Or.  50. 
Knowles  v.    Herbert,    11   Or.   54;    7, 

105,  106,  236,  273,  281,  298,  470. 
Knowles  v.  Herbert,   11   Or.   240;  7, 

105,  106.  273,  281,  2'J8,  470. 


Table  of  Cases. 


635 


Kofoed,  TruUinger  v.,  7  Or.  228. 
Kofoea,  Trulliugor  v.,  8  Or.  436.' 
Koiiigsbergcr  v.  Harvey,  12  Or.  28G; 

"0,   1 3. 
Kosliland,  Carter,  Rice,  &  Co.  v     1'^ 
Or.  492.  ' 

Koshlanil,  Carter,  Rice,  &  Co.  v.,  13 

Or.  G15. 
Koslowski  V.  Yesler,  2  W.  T.  407-  90 

93,  172,  325,  528. 
Kotlicnbcrtlial  v.  City  of  Salem  Co 
^  13  Or.  GJ4;  434. 

Ki-owsotn  V.  PurJom,  11  Or.  266-  29 

■       G7,  145,  2G4,  517.  '      ' 

Krewsou  &  Co.   v.   Purdom,   13  Or. 

503;  39,  G9,  145,  255,  278,  326.  367, 

465,  576,  578. 

Krusc*  V.  Prindle,  8  Or.  158:  75,  136* 

207,211,248,254.294. 
Kubli  V.  Martin,  5  Or.  436;  124,  512 
Ladd  V.  Higloy,  5  Or.  296:  64,'  274! 

336,  348,  350. 
Ladd,  Harty  v.,  3  Or.  353. 
Ladd  and  Bush  v.  Cartwridit,  7  Or 

329;  151,  152. 
Ladd  and  Bush  v.  Ferguson  and  Mc- 
Fadden,  9  Or.  ISO;  74,  82,  158,  515. 
Ladd  and  Bush  v.   Rarasby,    10  Or 

207;  298,  320,  454,  517. 
Ladd  and  Bush  v.  Sears,  9  Or    244- 
64,  66,  250,  262,  472.  ' 

Ladd  and  Bush,  Smith  v.,  6  Or.  316. 
Ladl   and  Tilton   v.    Mason,    10  Or 
308;  29,  102,  141,  165.  239,  250.  320,' 
314,  400,  462,  551. 
La  Fayette  v.  Clark,  9  Or.  225;  12G 
374.  '        ' 

Lafleur  and  Isaacs  v.  Douslass.  1  W 

T.  185;  401. 
Lahey  v.  Knott,  8  Or.  198;    64.  115 

141,  396. 
Lake,  Steamer  Gazell  v.,  1  Or.  119. 
Lakin  v.  Willamette  Valley  and  Coast 
R.   R.  Co.,  13  Or.  436:   149.  422. 
491,  493. 
Lamb,  Fields  v.,  2  Or.  340. 
Lambert  v.    Smith,  9   Or.   185;    204 

208,  212. 
Lancaster  v.   McDonald.  14  Or  264- 

39,  41,  69. 
Lander   v.   Miles,  3  Or.   35;  72.   168 

281.  562. 
Lander  v.  Miles,  3  Or.  40;  426,  427. 
Lander,  Crossman  v.,  3  Or.  495. 
Luu.Ier,  Long  and   Spaur  v.,   10  Or 

175;  82,  472. 
Lane  v.  Coos  County,  10  Or.  123-  283 

517,  543. 
Lane  County,  Springfield  ^lilling  Co. 

v.,  5  Or.  205. 
Lanuahan  v.   MultnomaJi   County    3 
Or.  187;  123,  282. 


Ilapp,  Archer  v.,  12  Or.  196. 
I  Lappeus,  Pomeroy  v. ,  9  Or.  363. 
I  Liippius,  Ball  v.,  3  Or.  55. 
La   liocque,    Harringtou   v..    13    Or 

344. 
Latshaw   v.   Territory   of   Oregon    1 
Or.  140;  61,  182,  183,  362,  364,  365. 
553,  574. 
Latshaw  v.  Territory   of    Orecon     1 
Or.  146.  fe     .    * 

Laughery,  Anderson  v.,  3  Or.  277, 
Lawham,  Dean  v.,  7  Or.  422. 
Lawrence  v.  Lawrence.  14  Or.  77-  20 
314,  317.  439,  465,  527,  559.      '      ' 
Lawrence,   Canyon  R.  Co.  v.,  3  Or 

519. 
Lawrence,  State  v.,  12  Or.  297. 
Layton  v.  Hogue,  5  Or.  93;  14,  324. 
Leabo,  Biglow  v.,  8  Or.  147. 
Leahy  v.  Cardwell,    14  Or.    171-    10 
325,  380,  573.  ' 

Learn,  Mills  v.,  2  Or.  215. 
Learn,  Beckley  v.,  3  Or.  470. 
Learn,  Beckley  v.,  3  Or.  544^ 
Leary.  Hachcny  v..  12  Or.  40. 
Leavens,  Bloomfield  v.,  13  Or.  108. 
Leavens,  Bloomfield  v..  14  Or.  181 
Lee  V.  Cooley.  13  Or.  433;   117.  255. 
205.514.  ' 

Lee   V.  Imbrie,   13   Or.   510;   33.   34 

153,  474,  495. 
Lee  V.  Simonds,  1  Or.  158;  101.  355, 

356,  464,  477,  4S0. 
Lee  V.  Summers,  2  Or.  200;  135   202 

241,  250,  450,  480,  488,  508.     ' 
Leeds,  Palmer,  &  Co.,  Creighton  v..  9 

Or.  215.  *  ' 

Lee  Ping  Bow,  State  v.,  10  Or.  27. 
Lee  Sam,  Portland  v.,  7  Or.  397. 
Lee  Shing,  Wciner  v.,  12  Or.  '^70. 
Lee  Yan  Yan,  State  v.,  10  Or.  265. 
Lchuherr,  Snider  v.,  5  Or.  385. 
Lolaud   v.  Portland.  2  Or.  4G:    200 

224,  253,  48J. 
Lemery,  Northcutv.,  8  Or.  316. 
Lemou   v.  Waterman,  2  W.   T.  485' 

110. 
Lennox  v.  Hendricks,  11  Or.  33;  102. 

523. 
Leonard,  Li  re,  12  Or.  93;  83. 
Leonard  v.  Grant.  8  Or.  276:  9    14 
222.  '     >       > 

Leonard  v.  Territory,  2  W.  T.  381; 

170,   177,   181,   183,   185,    188.  256.' 

308,  309,  312,  302. 
Leonard,  Aikiu  v.,  1  Or.  224. 
Leonard,  Sfcite  v.,  3  Or.  157. 
Leonede  v.  United  States,   1   W.   T. 

153. 
Lesclii  V.  Territory,  1  W.  T.    13;  84, 

129,   165,   172,    175,   187,  311,  3C1, 

372,  428,  529,  534.  530. 


636 


Table  of  Cases. 


Lererich  v.  Frank,  6  Or.  212;   261, 

519,  576. 
Levy  V.  Riley,  4  Or.  392;  9,  13,  32. 
Lewis  V.  Host,  2  W.  T.  402;  55,  508. 
Lewis  V.  Lewis,  4  Or.  177;   101,  205, 

235,  35G,  400,  497. 
Lewis  V.  Lewis,  4  Or.  209;  38,  48. 
Lewis  V.  Lewis,  5  Or.   169;   114,  400, 

497. 
Lewis  V.   McClure,  8   Or.  273;   192, 

246,  568. 
Lewis,  Adkins  v.,  5  Or.  292. 
Lewis,  Cheuowetli  and  Johnson  v.,  9 

Or.  1.50. 
Lewis,  Glaze  v.,  12  Or.  347. 
Lewis,  Russell  v.,  3  Or.  380. 
Lewis,  Russell  v.,  5  Or.  292. 
Lewis,  Seattle  Coal  Co.  v.,  1  W.  T. 

488. 
Lewis  County  v.  Hays  and  Kennedy, 

1  W.  T.  109;  122,  307. 
Lichtenstein    v.    Mellis,    8   Or,    464; 

555. 
Liebe,  Beaconnon,  v. ,  1 1  Or.  443. 
Life  Insurance  Co.,  Buford  v.,  5  Or. 

334. 
Light,  Pincus  and  Packscher  v.,  1  W. 

T.  511. 
Lindley  v.  Wallis,  2  Or.  203;  40. 
Linn  County  Woolen  Co.,  Monteith 

v.,  2  Or.  277. 
Linn    County,    Crawford  v.,    11    Or. 

482. 
LinnviUe  v.  Smith,  0  Or.  202;  316,  482, 

558. 
Locks  Co.,  Commissioners  v.,  6  Or. 

219. 
Logus,  Hosford  v.,  13  Or.  130. 
Logus,  jMcGuire  v. ,  1 1  Or.  233. 
Logus,  Whittier,  Fuller,  &  Co.  v.,  13 

Or.  546. 
Long  V.  Sharp,  5  Or.  438;  32,  54,  334, 

504. 
Long,  Hay  den  v.,  8  Or.  244. 
Long  and  Spaur  v.  Lander,  10  Or.  175; 

64,  67,  264,  363,  574,  577. 
Looniis,  Farnum  v.,  2  Or.  29. 
Loomis,  Ramsey  v.,  6  Or.  367. 
Lope,  Bartel  v.,  6  Or.  321. 
Lord,  Brown  v.,  7  Or.  302. 
Love  V.  Love,  8  Or.  23;  222,  482. 
Love,  Kahn  v.,  3  Or.  206. 
Lowenl)erg,  N.  P.  Terminal. Co.  v.,  11 

Or.  286. 
Lownsdale  v.  Portland,  1  Or.  382;  238, 

241,  335,  477,  479,  531. 
Lownsdale  v.  City  of  Portland,  1  Or. 

397;  199,  210,  241,  246. 
Lownsdale  v.   Hunsaker,  2   Or.   101; 

135,  508,  509. 
Lownsdale,  Smith  v.,  6  Or.  78. 
Lucas,  Roberta  v.,  1  W.  T.  205, 


Luce  V.  Isthmus  Transit  R'y  Ca,  6 

Or.  125;  23,  65,  105,  150,  473,  491. 
Ludwick  V.  Watson,  3  Or.  256;  133, 

433,  523. 
Luhrs  V.  Sturtevant,  10  Or.  170;  115, 

307,  433,  434. 
Lung  Louis  &  Co.  v.  Brown,  7  Or  326; 

25,  142,  194. 
Lurch,  State  v.,  12  Or.  95. 
Lurch,  State  v.,  12  Or.  99. 
Lurch,  State  v.,  12  Or.  104. 
Luse  V.  Luse,  9  Or.  149;  38. 
Lyons  v.  Bain,  1  W.  T.  482;  32,  35, 

50,  84,  244,  336,  342. 
Lyon3,  Nicolai  v.,  6  Or.  457. 
Lyon,  Nicolai  v. ,  8  Or.  56. 
Lytle  V.  Territory,  1  W.  T.  435;  37, 

42,  176,  188,  312,  339. 
Mack  V.  City  of  Salem,  6  Or.  275;  114, 

414,  416,  423,  431,  462. 
Mackey  v.  Olssen,  12  Or.  429;  58, 195, 

554. 
Mackey,  State  v.,  12  Or.  154. 
Mackintosh  v.  Reiiton,  2  W.  T.  121; 

139,  488. 
Madden,  Wolcott  v.,  10  Or.  370. 
Maddock,  Wilson  v.,  5  Or.  480. 
Maddocks,  Kellogg  v.,  1  W.  T.  407. 
Madison  v.  Madison,  1  W.  T.  60;  34, 

69,    216,   219,    221,   338,    360,   444, 

474. 
Magoon,  Davenport  v.,  13  Or.  3. 
Mahaffcy,  Alberson  v.,  6  Or.  412, 
Mah  Jim,  State  v.,  13  Or.  235. 
Manaudas  v.  Heilner,  12  Or.  335;  404. 
Manaudas   v.   Mann,   14   Or.   450;   6, 

209,  210,  226,  432,  465.    • 
Manchester,    McKilver   v.,    1  W.   T, 

255. 
Manciet,  Whitlock  v.,  10  Or.  106. 
Mann  v.  Flanagan.  9  Or.  425;  447. 
Mann,  State  v.,  2  Or.  238. 
Mann  v.  Young,  1  W.  T.  454;  5,  6, 

35,  37,  46,  59,  206,  430,  458. 
Mann,  Manaudas  v.,  14  Or.  450. 
Manning  v.  Klippel,  9  Or.  367;  126, 

283,  532. 
Manning,  Horrell  v.,  6  Or.  413. 
Manning,   Montgomery  v.,   1   W.   T. 

434. 
Marden,  Dodge  v.,  7  Or.  456, 
Marion  Co. ,  Johns  v. ,  4  Or.  46. 
Marks  &  Co.  v.  Crow,  14  Or.  382;  7, 

59,  214,  239,  240,  250,  267,  296,  536. 
Marlinv.  T'Vault,  1  Or.  77;  479.  , 
Marooney  v.  McKay,  3  Or.  372;  113, 

373,  382,  537. 
Marsh  v.  Perrin,  10  Or.  364;  292,  320, 

344. 
Marsh  v.  Trullin^er,  6  Or.  356;  193, 

198,  269,  433,  482. 
Marstou,  CMoi-d  v.,  14  Or.  426. 


Table  op  Cases. 


637 


Martin  v.  Martin,  14  Or.  165;  34,  59, 

240,  404. 
Martiu,  Kul)li  v.,  5  Or.  430. 
Marx  aiul  Jorgeuscu  v.  Schwartz,  14 

Or.    177;  30,  GJ,  293,  300,  3G5,  450. 
Mason,  Davis  v.,  3  Or.  154. 
Ma.3on,  Ladil  and  Tilton  v.,   10  Or. 

308. 
Mason,  Watkins  v.,  11  Or.  72. 
Mastick,  Wood  v.,  2  W.  T.  04. 
Matasco  V.  Hughes,  7  Or.  39;  91^  248, 

209. 
Mathews   v.   Eddy,  4   Or.   225;   205, 

270,  279,  405. 
Matlock,  Kirk  v.,  12  Or.  319. 
Matter  of  .Schneider,  1 1  Or.  288. 
Maxon,  Hazard  v.,  1  W.  T.  5S4. 
Mayer,  Rudolph  v.,  1  W.  T.  133. 
Maynard  v.   Hill,  2  W.  T.  321 ;   122, 

129,   130,   132,  210,  395,   390,  481, 

483,  4S4. 
Maynard  v.  Valentine,   2  W.   T.  3; 

122,   129,   130,   132,  210,  395,  390, 

483. 
Mays   V.    Foster  and  Robertson,   13 

Or.  214;  153. 
McAllister  v.  Territory,  1  W.  T.  300; 

45,  00,  182,  185,  203,  272,  310,  312, 

323,  348,  301,  302,  428,  503. 
McAllister,  Baker  and  Hamilton  v., 

2  W.  T.  48. 
McAllister,  Driver  v.,  1  W.  T.  307. 
McAlmoud  v.  Adams,  1  W.  T.  230; 

42. 
McCall  V.  Elliot,  3  Or.  138;  22,  249. 
McCalla  v.  Multnomah  Co.,  3  Or.  424; 

103,  158,  304,  421,  500. 
McCalley,  Jacobs  v.,  8  Or.  124. 
McCann  v.  Oregon  R'y  &  Nav.  Co., 

13  Or.  455;  244,  482,  509,  571. 
McClane,  Boon  v.,  2  Or.  331. 
McCIane  v.  Thomas,  1  Or.  288;  140. 
McClung,  Stewart  v.,  12  Or.  431. 
McClure,  Lewis  v.,  8  Or.  273. 
McCullough  V.  Hellman,  8  Or.  191; 

89,  3.37,  541. 
McCormack,  State  v. ,  8  Or.  236. 
McCormick  v.  Blanchard,  7  Or.  232; 

520. 
McCormick  v.  W.  W.  &  C.  R.  R.  R. 

Co.,  1  W.  T.  512;  31,  35,  30,  427, 

429. 
McCown  v.  Hannah,  3  Or.  302;  224, 

440,  459,  408. 
McCoy  v.   Ayres,  2  W.  T.  307;  238, 

444,  575. 
MfcCoy  V.  Ayres,  2  W.  T.  203;  12,  22, 

358,  375. 
McCoy  V.  Bayley,  8  Or.  190;  259. 
McCoy  V.  Bayley,  8  Or.  259. 
McCracken  v.  Swartz,  5  Or.  62;  04, 

274,  341. 


'  McCraith,  Eakin  v..  2  W.  T.  112. 
j  McCullough,  Friendly  v.,  9  Or.  109. 
McCuUy  V.  Swackhamcr,  0  Or.  438; 

247,  291,  .30.3,  509,  510. 
,  McDaniel,  Burch  v.,  2  \V.  T.  58. 
I  McDauiul,  Ifutlmau  v.,  1  Or.  259. 
McDaniel,  Rami)  v.,  12  Or.  108. 
McDearmid  v.  Foster  &  Co.,  14  Or. 

417;  380. 
McDonald  v,  Cruson,  2  Or.  258;  56, 

286. 
McDonald  v.  Cruzen,  2  Or.  259;  154, 

189,  330. 
McDonald  v.   Evans,  3  Or.  474;  154, 

498. 
McDonald,  Lancaster  v.,  14  Or.  264. 
McDonal.l,  Oregon  v.,  8  Or.  113. 
Mc(rinness,  .Tohnson  v.,  1  Or.  2".I2. 
McEwen  v.  Portland,  1  Or.  300;   224, 

260,  404. 
McEwan,  Wilson  v.,  7  Or.  87. 
McFadden   v.    Friendly,    9   Or.    222; 

]0(),  134,  130,  473. 
McFarland,  Kendall  v.,  4  Or.  292. 
McGilvrcy,    McMuUen  v.,    1   W.   T. 

513. 
McGowan  v.  Petit,   1  W.  T.  514;  35, 

55,  352. 
McGrew,  Cooper  v.,  8  Or.  327. 
McGrew,  Sears  v.,  10  Or.  48. 
McGrew,  Mulkey  v.,  2  W.  T.  259. 
McGuire  v.  Logus,  11  Or.  233;  ;'.S;J. 
Mclntyre  v.   Kamm,    12  Or.   253;   5, 

204,  209,  225,  250,  432,  531. 
McKay,   Freeman  v.,  0  Or.  449;  38, 

05,  222,  350. 
McKay,  Marooney  v. ,  3  Or.  372. 
McKee,  Quigley  v.,  12  Or.  22. 
McKilver   v.    Mauchester,    1    W.    T. 

255;  420,  428,  429. 
McKinmore,  State  v.,  8  Or.  207. 
McKinney  v.   Baker,    9  Or.   74;    75, 

440. 
McKinney,   Fox,  Baum,   &  Co.  v.,  9 

Or.  493. 
McKinuon,  State  ex  rel.  Mahoney  v., 

8  Or.  485. 
McKinnon,  State  ex  rel.  Mahoney  v., 

8  Or.  487. 
McKinnon,  State  ex  rel.  Mahoney  v., 

8  Or.  493. 
McLaiie,  Charman  v.,  1  Or.  339. 
McLaugldin  v.  Hoover,  1  Or.  31,  524, 

531,  53.3. 
McLearu,  Giiston  v.,  3  Or.  389. 
I  McMahan   v.   McMahan,  9  Or.   525; 
!     217. 

I  McMillan,  Gee  v.,  14  Or.  208. 
McMullan  v.  Abbott,  1  Or.  258;  86. 
McMuUen  v.  McGilvrey,  1  W.  T.  513; 

50. 
JMcMullcn,  Sheridan  v.,  12  Or.  150. 


638 


Table  of  Cases. 


McNear  &  Co.,  Blumberg  v.,  1  W.  T. 

141. 
McRae  V.  Daviner,  8  Or.  63;  276,  280. 
McWhirter   v.   Brainard,    5  Or.  426; 

121,  123,  164,  228,  319,  393,  528. 
Meacham  Arms  Company  v.  Swartz, 

2  W.  T.  412;   107,   297,  315,  322, 

464. 
Meads,  Hathaway  v.,  11  Or.  66. 
INIeek,  Graham  v.,  1  Or.  325. 
Meeker  v.  Gardella,  2  W.  T.  355;  40, 

52,  53,  60. 
Meeker  v.  "Wren,  1  W.  T.  73;  28,  454. 
Meigs  V.  Keach,   1  W.  T.   305;   101, 

117,  197,  487,  498,  501.. 
Meigs    and    Talbot    v.    Northerner, 

Steamship,   1  W.   T.   78;   16,   197, 

426. 
Mellis,  Lichtenstein  v.,  8  Or.  464. 
INIellon,  Hill  v.,  3  Or.  542. 
Merchant  v.  Humeston,  2  W.  T.  433; 

384,  385. 
Merriman  v.  Morgan,  7  Or.  68;  303, 

392. 
Merritt,  Kenworthy  v.,  2  W.  T.  155. 
Mctzger,  Parker  v.,  12  Or.  407. 
Mier  v.  Coflfeu,  3  Or.  426. 
Milarkey  v.   Foster,    6  Or.  379;  115, 

193,  257,  305,  463,  555. 
Miles  V.  Miles,  6  Or.  266;  204,  294 
JNIiles,  Lander  v.,  3  Or.  35. 
Miles,  Lauder  v.,  3  Or.  40. 
Millard,  Provost  v.,  3  Or.  370. 
Miller  V.  Ausenig,  2  W.  T.  22;  211, 

403. 
Miller  v.  Oregon  Paper  Mfg.  Co.,  3 

Or.  24;  147,  150,  276,  290,  333,  471. 
Miller  v.    Vaughn,   8   Or.    333;   212, 

22.3,  .399,  508. 
Miller  Bros.   v.   Bank  of  British  Co- 
lumbia, 2  Or.   291;  150,   276,   290, 

333,  345,  439. 

Miller,  Bouser  v.,  5  Or.  lia 
Miller,  Hays  v.,  1  W.  T.  143. 
Miller,  Moore  v.,  6  Or.  254. 
Miller,  Moore  v.,  7  Or.  486. 
Miller,  Wattier  v.,  11  Or.  329. 
MiUer  &  Co.,  Williams  v.,  1  W.  T. 

88. 
Mills  V.  Learn,  2  Or.  215;  284,  285, 

304. 
Minard  v.  Douglas  County,  9  Or.  206; 

306. 
Minter  v.  Durham,  13  Or.  470;  205, 

225,  271,  398,  442,  548,  549,  550. 
Minto  V.    Dclaney,   7  Or.   337;   102, 

109,  486,  567. 
Miskel  V.  Stone,  1  W.  T.  229;  42,  50. 
Misner  v.   Knapp,   13  Or.    135;  292, 

564. 
Mitchell   V.    Campbell,    14    Or.    454; 

334,  343,  344,  470,  476. 


Mitchell,  Barr  v.,  7  Or.  346. 
Moffit,  Burton  v.,  3  Or.  29. 
Moffit  V.  Coffin,  3  Or.  426;  205. 
Mogan    V.    Thompson,    13    Or.    230; 

46. 
Monastes  v.   Catlin,  6  Or.    119;  124, 

161,  301,  353,  354. 
Monroe  v.  Hussey,  1  Or.  188;  77,  86, 

105,  294,  509. 
Monroe  v.  Northern  Pacific  Coal  Min- 
ing Co.,  5  Or.  509;  56,  63,  64,  140, 

449,  460,  470. 
Monteith  v.  Eagle  Woolen  Co.,  2  Or. 

277;  22. 
Monteith,  Parker  v.,  7  Or.  377. 
Montgomery  v.    Manning,    1   W.   T. 

434;  335,  5.39. 
Montgomery  v.  Multnomah  E,'y  Co., 

11  Or.  344;  74,  285,  286,  289,  304. 
Monumental  Gold  and  Silver  Mining 

Co.,  Brundage  v.,  12  Or.  322. 
Monumental  Mining  Co.,  Durham  v., 

9  Or.  41. 
Mooney,  Holcombv.,  13  Or.  503. 
Mooney,  Keyes  v.,  13  Or.  J 79. 
Moore,  In  the  Matter  of,  1  Or.  179; 

381 
Moore  v.  Fields,   1  Or.  317;  31,  356, 

477. 
Moore  v.  Floyd,  4  Or.   101;  247,  249, 

278,  291,  363,  510,  516. 
Moore  v.  Floyd,  4  Or.  260;  32,  336, 

342. 
Moore  v.   Fuller,  6  Or.  272;  5,  257, 

316,  403,  409. 
Moore,  Hurd  v.,  2  Or.  85.     . 
Moore  v.  Knott,  12  Or.  260;  447. 
Moore  v.  Knott,  14  Or.  35;  256,  448, 
Moore  v.  Miller,  6  Or.  254;  88,  89. 
Moore  v.   Miller,  7  Or.  4SG;  91,  249. 
Moore,  Murch  v.,  2  Or.  189. 
Moore  v.    Packwood,  5  Or.  325;  32, 

552. 
Moore  v.  Thomas,  1  Or.  201;  208,  210, 

221,  403,  408. 
Moore  v.  Walla  Walla,  2  W.  T.   184; 

21,  237,  244,  421,  435. 
Moore  v.  Willamette  Trans.  &  Locks 

Co.,  7  Or.  355;  27,  150,  225,  507. 
Moore  v.  Willamette  Trans.  &  Locks 

Co.,  7  Or.  359;  152,   154,  203,  211, 

277,  287,  354,  495,  571. 
Moore,  Altree  v.,  1  Or.  350. 
Moore,  Brown  v.,  3  Or.  43.5. 
Moore,  Olney  v.,  13  Or.  238. 
Moorehouse,  Gird  v.,  2  Or.  53. 
Moorhouse  v.  Donica  and  Cox,  13  Or. 

435;  30,  55. 
Moorhouse  v.  Donaca,  14  Or.  430;  61, 

69,  116,  .328,  .367,  499,  500. 
Moorhouse,  Clifi"ord  v.,  14  Or.  426. 
Moorey,  Ward  v.,  1  W.  T.  104. 


Table  of  Cases. 


639 


Iklorcland  v.  Bratl^,  8  Or.  303;  257, 

317,  571,  572. 
Morgan  v.  Hcaderaoiv- 2  W.  T.  3C7; 

201). 
Morgan,  Merriman  v. ,  7  Or.  C8, 
Morin,  Oilell  v.,  5  Or.  90. 
Morris  v.  Perkins,  0  Or.  350;  65,  365. 
Moirii,  Goodwin  v.,  9  Or.  322. 
Morris,  Hondorsou  v.,  5  Or.  24. 
Morris,  Pin  v.,  1  Or.  230. 
Morrison  v.  Crawford,  7  Or.  472;  45, 

78,  194. 
Morrissy,  Atkinson  v.,  3  Or.  332. 
Morrow,  WiUey  v.,  1  W.  T.  474. 
Morrow  Co.  v.  Hcndryx,  14  Or.  397; 

122,  159,  395,  544. 
Moser  v.  Jenkins,  5  Or.  447;  21,  25, 

56,  459,  4C.9,  498. 
Moses,  Gove  v.,  1  W.  T.  7. 
Mosier,  Craig  v.,  2  Or.  323. 
Mosier,  0.  R.  &  N.  Co.  v.,  14  Or.  519. 
Mossv.  Cully,  1  Or.  147;  90,  113, 
Moss,  Arthur  v.,  1  Or.  193. 
Mosseau  v.  Veeder,  2  Or.  113;  360. 
Moy  Looke,  State  v.,  7  Or.  54. 
Mulkcy  V.  McGrew,  2  W.  T.  259;  51. 
Mulkcy,  Swift  v.,  14  Or.  59. 
Mullen  V.  Mullen,   1  W.  T.  192;  59, 

70,  339,  375,  391. 
Multnomah  County  v.  Adams,  6  Or. 

114,  123. 
Multnomah  County  v.  Knott,  6  Or. 

279;  285,  287,  355,  373. 
Multnomah  Co.  v.  Slikcr,   10  Or.  65; 

121,  1-24,  305,  522. 
Multnomah  Co.  v.  State,  1  Or.  358. 
Multnomah  Co.,  Thompson  v.,  2  Or. 

34. 
Multnomah  Co.,  Trainor  v.,  2  Or.  214. 
Multnomah  Co.,  Adams  v.  6  Or.  116. 
Multnomah  Co.,  Ankeny  v.,  3  Or.  386. 
Multnomah  Co.,  Ankeny  v.,  3  Or.  388. 
Multnomah  Co.,  Ankeny  v.,  4  Or.  271. 
Multnomah  Co.,    City  of  East  Port- 

V.,  6  Or.  62. 
Multnomah  Co.,  Cook  v.,  8  Or.  170. 
Multnomah  Co.,  Daly  v.,  14  Or.  20. 
Multnomah  Co.,  Lanuahau  v.,  3  Or. 

187. 
Multnomah   Co.,  McCalla  v.,  3   Or. 

424. 
Multnomah  Co.,  State  v.,  13-Or.287. 
Multnomah  Co.,  Terwilliger  v.,  6  Or. 

295. 
Multnomah  Co.,  Wetmore  v.,  C  Or. 

463. 
Multnomah  R'y  Co.,  Budd  v.,  12  Or. 

271. 
Multnomah  R'y  Co.,  Hackett  v.,  12  Or 

124;    286. 
Multnomah  R'y  Co.,  Montgomery  v., 

llOr.  344. 


Multnomah  Street  R'y  Co.,  v.  Harris, 

13  Or.  198;  274,  296. 
Mulvancy,  Tcnny  v.,  8  Or.  129. 
Mulvancy,  Teuny  v.,  8  Or.  513. 
Mulvaney  and  Bemis,  Tonny  and  Mc- 

Kenzic  v.,  9  Or.  405. 
Mumfcrd  v.  Hewall,   11  Or.  67;   127, 

129,  403,  529,  543. 
Munds,  State  v.,  7  Or.  80. 
March  v.  Moore,  2  Or.  189;  339,  341, 

347,  525. 
Murne  v.  Schwabacher  Bros.  &  Co.,  2 

W.  T.   130;   7,  166,  281,  333,  335, 

360,  444. 
Murnc  v.  Schwabacher  Bros.  &  Co.,  2 

VV.  T.  191;  24,  237,  281,  444. 
Murphy,  Donegan  v.,  6  Or.  436. 
Murphy  v.  Sears  and  Holman,  1 1  Or. 

127;  490. 
Murphy,  ^^'^litley  v.,  5  Or.  328. 
Murray  v.  Murray',  6  Or.  26;   2,   14, 

213,  269,  347,  380,  395,  440,  482. 
Murray  v.  Murraj-,  6  Or.  17;  45,  247, 

252,  346,  363,  366,  471. 
Murray  v.  Oliver,  3  Or.  539;  138,  324, 

560. 
Murray,  State  v.,  11  Or.  413. 
Murton,  Stephens  v.,  6  Or.  193. 
Musgrove,  Dray  v.,  5  Or.  185. 
Musgrove  v.  Bonser,  5  Or.  313;  208, 

430. 
Myer  v.  Beal,  5  Or.  130;  400,  526. 
Myers  v.  Warner,  3  Or.  212;  226,  328, 

356,  468. 
Myers,  Kitcherside  v.,  10  Or.  21. 
Myers,  Warner  v.,  3  Or.  218. 
Myers,  Warner  v.,  4  Or.  72. 
^lyrick,  Goodman  v.,  5  Or.  65. 
Naylor  v.  Beeks,  1  Or.  216;  251,  304. 
Neely,  King  County  v.,  1  W.  T.  241. 
NefiF,  Wells  v.,  14  Or.  Oij. 
Neil  v.  Tolman,  12  Or.  289;  243,  335, 

338,  502,  569. 
Neil  v.  Wilson,  14  Or.  410;  452,  522. 
Nelson  v.  Oregon  R'y  &  Nav.  Co.,  13 

Or.  141;  58,  68,  195,  371. 
Nelson,  Poppleton  v.,  10  Or.  437. 
Nelson,  Poppleton  v.,  12  Or.  'MO. 
Ncppach  V.  Jordan,  13  Or.  246;  38,  39, 

54. 
Nesqually  Mill  Co.  v.  Taylor,  1  W.  T. 

1;69,  80,  318,345. 
Nevel,  Stingle  v.,  9  Or.  02. 
Newberg  and   Abrams  v.  Farmer,   1 

W.  T.  182;  70,  158,  429,  454,  460, 

461,  469. 
Newby  v.  Rowland,  11  Or.  133;  29,  61, 

64,  67,  225. 
Newby  v.  Territory,  1  Or.   163;  367, 

369,  426,  506. 
Newby,  Yamliill  Bridge  Co.  v.,  1  Or. 

173. 


640 


Tajble  of  Cases. 


Newhouse  v.  Newhouse,  14  Or.  290; 

219. 
New  Idrian  C.  M.  Co.,  Jackson  v., 

10  Or.  157. 
Newsom  v.  Greenwood,  4  Or.  119;  6, 

497,  531,  534. 
Newsom,  Settlemier  v.,  10  Or.  446. 
.  Newton  v.  Spencer,  3  Or.  548;  480, 
Newton,  Sires  v.,  1  ^V.  T.  356. 
Newton,  Steeples  v.,  7  Or.  110. 
New  York  Life    Ins.  Co.,  Buford  v., 

5  Or.  334. 
Nichols  V.  Gage,  10  Or.  82;  143,  144. 
Nicholson,  Stannis  v.,  2  Or.  332. 
Nickels  v.  Griffin,  1  W.  T.  374;  15,  16, 

84,  131,  165,  351,  397,  475,  476,  507. 
Nickerson,  Webb  v.,  11  Or.  382. 
Nicklin  V.  Betts  Spring  Co.,  11  Or. 

406;  403. 
Nicklin  V.  Hobin,  13  Or.  406;  34^  158, 

338,  350,  351. 
Nickum,  Dolph  v.,  2  Or.  202. 
Nicolai  v.  Lyon,  8  Or.  56;    104,  119, 

291,  409. 
Nicolai  v.  Lyon,  6  Or.  457;  119. 
Nine  V.  Starr,  8  Or.  49;  134,  139,  301, 

319   439. 
Nodine  v.  Union,  13  Or.  587;  175,  420, 

454. 
Noland  V.  Costello,  2  Or.  57;  122,  354, 

372  535. 
Norman  v.  Zieber,  3  Or.   197;    2,  72, 

78,    113,  290,    302,    349,  354,  356, 

453,  459,  540. 
Normandin  v.  Gratton,  12  Or.  505;  4, 

271. 
Norris,  Hume  v.,  5  Or.  478. 
Norris,  Territory  v.,  1  Or.  107. 
Northcut  V.  Lemery,  8  Or.  316;  336, 

346,  350,  351,  539. 
Northcutt,  Browti  v.,  14  Or.  529. 
Northerner,      Steamship,      Resolute, 

Steamtug,  v.,  1  W.  T.,  78. 
Northener,    Steamship,    Meigs   v.,    1 

W.  T.  78. 
North  Pacific  Trans.  Co.,  Oliver  v.,  3 

Or.  84. 
Northern   Pacific   Coal    Mining   Co., 

Monroe  v.,  5  Or.  509. 
Northern   Pacific  Express   Co.,  Ben- 
nett v.,  12  Or.  49. 
Northern  Pacific  Lumbering  and  Mfg. 

Co.  V.  East  Portland,  14  Or.  3;  139, 

244,  413,  418. 
Northern  Pacific  R.  R.  Co.  v.  Wells, 

Fargo,  &  Co.,  2  W.  T.  303;  36,  37, 

322. 
Northern  Pacific  Terminal  Co.  v.  City 

of   Portland,   14  Or.  24;   247,  252, 

357,  413,  416,  418,  419. 
Northern  Pacific  Terminal  Co.  v.  Low- 

enberg,  11  Or.  286;  39,  48,  53. 


Northrop  v.  City  of  Portland,  3  Or. 

258;  135,  249. 
Northwest  Publishing  Co.,  Dunniway 

Publishing  Co.  v.,  11  Or.  322. 
Northwestern  Stage  Co.,  White  v.,  5 

Or.  99. 
Norton  v.  Harding,  3  Or.   361;  343, 

349. 
Norton  v.  Winter,  1  Or.  47;  298,  347. 
Norton  v.  Winter,  1  Or.  97;  28,  98. 
Norton,  Allen  v.,  6  Or.  344. 
Norton,  Winter  v.,  1  Or.  42. 
Noyes  v.  Staufi',  5  Or.  455;  253,  257, 

269,  523,  562. 
Nurse  v.  Justus,  6  Or.  75;  155. 
Nye,  Richards  v.,  5  Or.  382. 
Odell  V.   Campbell,   9   Or.   298;   346, 

350,  351,  539. 
Odell  V.  Gotfrey,  13  Or.  466;  34,  49, 
Odell  V.  Morin,  5  Or.  96;  520. 
Odell,  State  v.,  8  Or.  30. 
Officer,  State  v.,  4  Or.  180. 
Oglesbee,  Yesler  v.,  1  W.  T.  604. 
O'Harra  v.    City  of  Portland,    3  Or. 

525;  414,  416,  422. 
O'Keefe  v.  Weber,  14  Or.  55;  7,  123, 

128,  170,  297,  530,  532. 
O'Kelly  V.   Territorj^,    1    Or.   51;  61, 

121,   189,   190,  328,  358,   360,   369, 

552. 
Olds  V.  Carey,  13  Or.  362;  64,  65,  84, 

100,  117,  196,  .321,  462,  46.3. 
Olds  and  King,  Salmon  v.,  9  Or.  488. 
OLeary  v.  Fargher,  11  Or.  225;   56, 

64,  474,  496. 
Oliver  v.  Harvey,  5  Or.  360;  38,  352, 

467,  469. 
Oliver,  Murray  v.,  3  Or.  539. 
Oliver  v.  North  Pacific  Trans.  Co.,  3 

Or.  84;  22,  94,  192,  396,  421. 
Olney  v.  Moore,  13  Or.  238;  487. 
Olney,  Stark  v.,  3  Or.  88. 
Olssen,  Mackey  v.,  12  Or.  429. 
Olympia,  Hadlan  v.,  2  W.  T.  340. 
Olympia,  Hutchinson  v.,  2  W.  T.  314. 
ONeil,  State  v.,  7  Or.  141. 
O'Neil,  State  v.,  13  Or.  183. 
O'Neill,  City  of  Portland  v.,  1  Or.  218. 
Opitz  V.  Winn,  3  Or.  9;  298,  372. 
Oregon  and  California  R.  R.  Co.  v. 

Barlow,  3  Or.  311;    192,  232,  268, 

471. 
Oregon  &  Cal.  R.  R.  Co.  v.  Potter,  5 

Or.  228;  87,  133,  138. 
Oregon  &  Cal.  R.  R.  Co.,  Caro  Bros. 

v.,  10  Or.  510. 
Oregon  &  Cal.  R.  R.  Co.,  Cogswell  v., 

6  Or.  417. 
Oregon  &  Cal.  R'y  Co.,  Davidson  v., 

11  Or.  136. 
Oregon  &  CaL  R.  R.  Co.,  Davis  v.,  8 

Or.  172. 


Table  of  Cases. 


641 


Oregon  &  Cal.  R.  R.  Co.,  Holstine  v.. 

8  Or.  1G3. 
Oregon  &  Cal.  R.  R.  Co.,  Honeyman 

v.,  13  Or.  352. 
Oregon  Cascades  R.  R.  Co.  v.  Bailey, 

3  Or.  1G4;  1,  147,  229,  230,  231,  2G3, 

2G8,  3G7,  471,  54G. 
Oregon  Cascades  R.  R.  Co.  v.  Oregon 

Steam  Nav.  Co.,  3  Or.  178;  19,  231 

2G8,  3G7,  3G8,  3GD,  42G,  427,  4G4. 
Oregon  Central  R.  R.  Co.  v.  Scofgin, 

3  Or.  161;  1,  25,26,  133,   147,   151, 

290,  455,  457,  459. 
Oregon  Central  R.  R.  Co.,  State  v..  2 

Or.  255. 
Oregon  Central  R.  R.  Co.  v.  Wait,  3 

Or.   91;  1,  25,   101,  192,  232,   284, 

457,  458,  475,  491. 
Oregon  Central  R.  R.  Co.  v.  Wait,  3 

Or.  42S;  154,  232,  471,  550. 
Oregon  City  Mfg.  Co.,  Stone  v.,  4  Or. 

52. 
Oregon  Iron  Co.  v.  TruUinger,  2  Or. 

311;  207,  5G6. 
Oregon  Iron  Co.  v.  Trullenger,  3  Or. 

1;  198,  207,  210,  5G6. 
Oregon  Iron  and  Steel  Co.,  Weiss  v.. 

13  Or.  496. 

Oregon  Paper  Mfg.  Co.,  Miller  v.,  3 

Or.  24. 
Oregon  R'y  &  Nav.  Co.,  Cassida  v., 

14  Or.  551. 

Oregon  R'y  Co.  v.  City  of  Portland, 

9  Or.  231;  200,  230. 
Oregon  R'y  &  Nav.  Co.  v.  Galliher, 

2  W.  T.  70;  45,  47,   67,    70,   71, 

366. 
Oregon  R'y  &  Nav.  Co.  v.  Gates,  10 

Or.  514;  79,  236,  298,  343. 
Oregon  R'y  &  Nav.  Co.  v.  Mosier,  14 

Or.  519;  196,  233,  287,  492. 
Oregon  R'y  &  Nav.  Co.  v.  0.  R.  E. 

Co.,  10  Or.  444;  223,  231,  233,  270, 

331,  471,  551. 
Oregon  R'y  &  Nav,  Co.,  Hughes  v., 

11  Or.  437. 

Oregon  R'y  &  Nav.  Co.,  McCann  v., 

13  Or.  455. 
Oregon  R'y  &  Nav.  Co.,   Nelson  v., 

13  Or.  141. 
Oregon  R'y  &  Nav,  Co.,  Prettyman 

v.,  13  Or.  341. 
Oregon  R'y  &  Nav.  Co.,  Scott  v.,  14 

Or.  211. 
Oregon  R'y  &  Nav.  Co.,  Sullivan  v., 

12  Or.  392. 

Oregon  R'y  &  Nav,  Co.,  Walsh  v.,  10 

Or.  250. 
Oregon  R'y  &  Nav.  Co.,  Willis  v.,  11 

Or.  257. 
Oregon  Real  Estate  Co.,  0.  R.  N.  Co. 

v.,  10  Or.  444. 
Ob.  Dig.— U 


Oregon   Steam  Nav.   Co.   v.   City  of 

Portland,  2  Or.  81;  411,  545. 
Oregon  Steam  Nav.    Co.   v.    Hale,   I 

W.  T.  283;  139. 
Oregon    Steam   Nav.    Co.    v.    Wasco 

County,  2  Or.  20G;  161,  545,  547. 
Oregon  Steam  Nav.  Co.,  Johnson  v., 

8  Or.  35. 
Oregon  Steam  Nav.  Co.,  Oregon  Cas- 
cades R.  R.  Co.  v.,  3  Or.  164. 
Oregon  Steam  Nav.  Co.,  Oregon  Cas- 
cades R.  R.  Co.  v.,  3  Or.  178. 
Oregon,  Territory  of,  v.  Coleman,   1 

Or.  191;  326. 
Oi-egou,  Territory  of.  Hart  v.,  1  Or. 

122. 
Oregon,  Territory  of,  v.  King,   1  Or. 

106;  94,  118. 
Oregon,  Territory  of,  Latshaw  v.,  1 

Or.  140. 
Oregon,  Territory  of,  v.   Latshaw,   1 

Or.   146;  426. 
Oregon,  Territory  of,  Newby  v.,  1  Or. 

163. 
Oregon,  Territory  of,  v.  Norris,  1  Or, 

107;  94,  118. 
Oregon,   Territory  of,  O'Kelly  v.,    1 

Or.  51. 
Oregon,   Territory   of,    ex    rel.    Ken- 
nedy V.  Pyle,  1  Or.  149;  289. 
Oregon,  Territory  of.  Wood  v.,  1  Or. 

223. 
Oregon,  Territory  of.  Young  v.,  1  Or. 

213. 
Oregonian  R'y  Co.  v.  Bridwell,  1 1  Or, 

282;  232,  371. 
Oregonian  R'y  Co.  v.  Hill,  9  Or.  377; 

121,  126,  231.  2.32. 
Oregonian  R'y  Co.  v.  Wright,  10  Or. 
162;  45,  61,  62,   134,  258,  348,  428. 
Oregonian  R'y  Co.,  Branson  v.,  10  Or. 

278. 
Oregonian   R'y  Co.,   Branson   v.,    11 

Or.  161. 
Oregonian  R'y  Co.,  Hughes  v.,  11  Or. 

l.-)8. 
O'Riley  v.  Wilson,  4  Or.  96. 
Orton  V.  Orton,  7  Or.  478;  105. 
Osborn  v.  Graves,  11  Or.  526;  50,  68, 

.348,  454,  496,  497. 
Osborn,  Sherman  v.,  8  Or.  66. 
Osborn  Co.,  Withamv.,  4  Or.  318, 
Osborne,  Failing  v.,  3  Or.  498. 
Oswego  Iron  Co.,  Shaw  v.,  10  Or.  371. 
Otchin,  Tolmie  v.,  1  Or.  95. 
Otis,  Vandolf  v.,  1  Or.  153. 
Ott,  Hadlau  v.,  2  W.  T.  165. 
Ottenlieimer,  Cohen  v.,  13  Or.  220. 
Ottenheimer,  Rugh  v.,  6  Or.  231. 
Pacific    University,  Tyler  v.,   14  Or. 

485. 
Packird,  State  v.,  4  Or.  157. 


642 


Table  of  Cases. 


Packwood,  Moore  v.,  5  Or.  325. 
Paddock  v.  Hume,  6  Or.  82;  97,  99, 

540. 
Page  V.  Finley,  8  Or.  45;  65,  262,  365, 

576. 
Page  V.  Rodney,  2  W.  T.  461;  31,  62, 

63,  427,  428. 

Page  V.  Smith,  13  Or.  410;  27,  61,  80, 

243,  348. 
Page,  Bank   of  British  Columbia  v., 

6  Or.  431. 
Page,  Bauk  of  British  Columbia  v.,  7 

Or.  454. 
Page,  Holbrook  v.,  3  Or.  374. 
Page,  Wardwell  v.,  9  Or.  517. 
Page  &  Co.  V.  Grant,  9  Or.  116;  116, 

295. 
Palmer  v.  United  States,  1  W.  T.  5; 

69,  187. 
Palmer  v.  State,  2  Or.  66;  167,  387, 

533. 
Palmer,  Rich  v.,  6  Or.  339. 
Paquctt,  Hedges  v.,  3  Or.  77. 
Parker  v.  Dacres,  2  W.  T.  362;  43. 
Parker  v.  Dacres,  2  W.  T.  439;  277, 

278,  404,  407,  528. 
Parker  v.  Denney,  2  W.  T.   176;  39, 

44,  47. 
Parker  v.   Denny,  2  W.  T.  360;  37, 

40,  50,  52,  352. 
Parker  v.  Metzger,  12  Or.  407;  20,  526, 

527. 
Parker  v.    Monteith,  7    Or.  277;  63, 

64,  115,  262,  269,  514. 

Parker  v.  Rogers,  8  Or.  183;  95,  207, 

482,  480,  568,  571. 
Parker  v.  Taylor,  7  Or.  435;  101,  242, 

320,  485,  486,  567,  570. 
Parker,  Goddard  v.,  10  Or.  102. 
Parker,  Farley  v.,  4  Or.  269. 
Parker,  Farley  v.,  6  Or.  105. 
Parker,  Hays  v.,  2  W.  T.  198. 
Parker,  Shively  v.,  9  Or.  500. 
Parker,  Turner  v.,  14  Or.  34a 
Parmenter,  Pettyjohn  v.,  10  Or.  341; 

320,  503. 
Parmenticrv.  Pater,  13  Or.  121;  223, 

293,  553. 
Parrish  v.  Stephens,  1  Or.  59;  199. 
Parrish  v.  Stephens,   1    Or.   73;   319, 

433. 
Parrish,  Elkins  v.,  8  Or.  330. 
Partlow  V.  Singer,  2  Or.  307;  90,  327, 

449. 
Pater,  Parmentier  v.,  13  Or.  121. 
Patterson,  Holladay  v.,  5  Or.  177. 
Patterson,  Hopwood  v.,  2  Or.  49. 
Patterson,  Howe  v.,  5  Or.  353. 
Patterson  &  Co.,  Taylor  v.,  5  Or.  12i. 
Patton,  Dearl)orn  v.,  3  Or.  420. 
Patton,  Dearborn  v.,  4  Or.  58. 
Patton,  Young  v.,  9  Or.  195. 


Pease  v.  KeHy,  3  Or.  417;  386,  408. 
Pease  v.  Hannah,  3  Or.  301;  28,  113, 

224,  457. 
Pencinse  v.  Burton,  9  Or.  178;  48,  57. 
People's   Trans.   Co.,  Bequette  v.,   2 

Or.  200. 
People's  Trans.  Co.,  Kelly  v.,  3  Or, 

189. 
Pepin,  Brown  Bros.  &  Co.  v.,  1  W.  T. 

205. 
Perham,  State  v.,  4  Or.  188. 
Perkins,  Edwards  v.,  7  Or.  149. 
Perkins,  Gaunt  v.,  8  Or.  354. 
Perkins,  Morris  v. ,  6  Or.  350. 
Perkins,  Stewart  v.,  3  Or.  508, 
Perrin,  Marsh  v.,  10  Or.  364. 
Perrin,  Willamette  Falls  Co.  v.,  1  Or. 

182 
Perry  V.  Stone,  2  W.  T.  464;  55. 
Peterson  v.  Foss,  12  Or.  81;  50,  402, 

470. 
Petit,  McGowan  v.,  1  W.  T.  514. 
Retrain,  Adams  v.,  11  Or.  304. 
Pettengill,  Ramsey  v.,  14  Or.  207. 
Pettyjohn,  Parmenter  v.,  10  Or.  341. 
Peyser  v.  Cole,  11  Or.  39;  82,  87. 
Phelps  V.  Steamship  City  of  Panama, 
1  W.  T.  518;  17,  131,  197,  314,  315, 
360,  444,  473. 
Phelps  V.  Steamsliip  City  of  Panama, 

1  W.  T.  615;  15,  18,  214,  475. 
Phillippi  V.  Thompson,  8  Or.  428;  19, 

102,  225,  248,  432,  465. 
Phillippi,  Groner  v. ,  3  Or.  484. 
Phillippi,  Schirott  v.,  3  Or.  484. 
Phillips  V.   Thorp,   10  Or.  494;   204, 

219,  220,  401. 
Philomath  College  v.  Hartless,  6  Or. 

158;  87,  134,  150,  473. 
Phinney  v.   Hubbard,  2  W.   T.  369; 

198,  294,  512. 
Phinney,  Waterman  and  Katz  v.,    I 

W.  T.  415. 
Phipps  V.  Kelly,  12  Or.  213;  234,  236, 

315,  317. 
Phy,  Stewart  v.,  11  Or.  335. 
Pickard,  Jette  v.,  4  Or.  296. 
Pickle,  Frank  v.,  2  W.  T.  55. 
Pierce  Co.,  Puget  Sound  Agricultural 

Co.  v.,  1  W.  T.  159. 
Pierce  Co.,  Puget  Sound  Agricultural 

Co.  v.,  1  W.  T.  74. 
Pierce  Co.,  Puget  Sound  Agricultural 

Co.  v.,  1  W.  T.  76. 
Piette,  Crandall  v.,  1  Or.  226, 
Pike,  Saunders  v.,  6  Or.  312. 
Pin  V.  Morris,  1  Or.  230;  335,  480. 
Pincus  and  Packscher  v.  Light,  1  W. 

T.  511. 
Ping,  WaUa  Walla  Co.  v.,   1  W.  T, 

339. 
Pitman  v.  Bump,  5  Or.  17;  525, 


Table  of  Cases. 


643 


Pittinan  v.  Pittman,  3  Or.  472;  31,  44, 

53,  -220,  336. 
Pittman  v.  Pittman,  4  Or.  298;  124, 

314,  315. 
Pitman,  Griffin  v.,  8  Or.  342. 
Pitzer  V.  Russel,  4  Or.  124;  114,340, 

347. 
Plymale  v.  Comstock,  9  Or.  318;  523. 
Pomeroy  v.  Lappeus,  9  Or.  363;  303, 

357,  420,  454. 
Pool  V.  BuflFum,  3  Or.  438;  .3,  571. 
Poppleton  V.  Nelson,  10  Or.  437;  38, 

48,  54,  442. 
Poppleton  V.  Nelson,  12  Or.  349;  560. 
Poppleton  V.  Yamhill  Co.,  8  Or.  337; 

125.  292,  503,  504,  545,  546,  548. 
Poppleton,  Belt  v.,  11  Or.  201. 
Poppleton,  Hoxter  v.,  9  Or.  481. 
Poppleton,  Williams  v.,  3  Or.  139. 
Port  Blakeley  Mill  Co.  v.  Clymer,  1 

W.  T.  G07;  44,  51. 
Port  Blakeley  Mill  Co.,  Wheeler  v., 

2  W.  T.  71. 
Porter  v.  Smith,  1  W.  T.  608. 
Porter,  Stiuson  v.,  ]2  Or.  444. 
Portland  v.   Baker,   8   Or.   356;    108, 

115,  142,  320,  412. 
Portland   v.  Besser,   10  Or.  242;  97, 

118,   120,  126,  254,  282,   283,  416, 

436,  565. 
Portland  v.   Denny,  5  Or.   160;  118, 

123,  172,  28.3,  355,  415,  464. 
Portland,  Garrison  v.,  2  Or.  123. 
Portland  v.  Kamm,  5  Or.  362;  32,  192, 

193,  302,  369,  416,  420. 
Portland  v.  Kamm,  10  Or.  383;  233, 

420. 
Portland,  City  of,  King  v.,  2  Or.  146. 
Portland,  City  of,  v.  Lee  Sam,  7  Or. 

397;  193,  233,  417,  420. 
Portland,  City  of,  Leland  v.,  2  Or.  46. 
Portland,  City  of,  Oregon  Steam  Nav. 

Co.  v.,  2  Or.  81. 
Portland,  City  of,  v.  Schmidt,  13  Or. 

17;  170,  388,  412,  413,  532. 
Portland,  City  of,  v.  Stock,  2  Or.  69; 

122,  535. 
Portland,  City  of,  v.  Whittle,  3  Or. 

126;  200,  416. 
Portland,   City  of.    Carter  v.,   4  Or. 

339. 
Portland,  City  of,  Dowell  v.,  13  Or. 

248. 
Portland,  City  of,  Hallock  v.,  8  Or.  29. 
Portland,  City  of,  Lownsdale  v. ,  1  Or. 

381. 
Portland,  City  of,  Lownsdale  v.,  1  Or. 

397. 
Portland,  City  of,  McEwen  v.,  1  Or. 

300. 
Portland,    City  of.  Northern   Pacific 

Terminal  Co.  v.,  14  Or.  24. 


Portland,  City  of,  Northrop  v.,  3  Or. 

258. 
Portland,  City  of,  O'Harra  v.,  3  Or. 

525. 
Portland,  City  of,  O'Neill  v.,  1  Or.  218; 

104,  381,  411. 
Portland,    City   of,    Oregon   Piailway 

Co.  v.,  9  Or.  231. 
Portland,  City  of,  P.  &  W.  V.  R.  R. 

Co.  v.,  14  Or.  188;  231,  41 G,  492. 
Portland,  City  of,  Selby  v.,  14  Or.  243. 
Portland,  City  of,  Strowbridge  v.,  8 

Or.  67. 
Portland,  City  of.  Van  Sant  v.,  6  Or. 

395. 
Portland  Common  Council,  Simon  v., 

9  Or.  437. 
Portland  Lumbering  and  Mfg  Co.  v. 

School  District  No.  1,  13  Or   283. 
Portland  Water  Committee,  David  v., 

14  Or.  98. 
Portland  and   Willamette  Valley  R. 

R.  Co.  V.  City  of  Portland,   14  Or. 

188;  122,  201,  322,  419. 
Post,  Kendall  v.,  8  Or.  141. 
Potter,  Oregon  &  Cal.  R.  R.  Co.  v., 

5  Or.  228. 
Powell    V.    Dayton,    Sheridan,    and 

Grande  Ronde  R.  R.  Co.,   12  Or. 

488;   138,   140,  143,  203,  508,  550, 

551. 
Powell     V.    Dajrton,     Sheridan,    and 

Grande  Ronde  R.  R.  Co.,   13   Or, 

446;  439,  443,  457,  527. 
Powell    V.    Dayton,    Sheridan,    and 

Grande   Ronde   R.  R.  Co.,   14  Or. 

22;  58,  59,  380. 
Powell     V.     Dayton,     Sheridan,     and 

Grande   Ronde  R.  R.  Co.,   14   Or. 

356;  136,  138,  140,  143,  203. 
Powell,  Stephens  v.,  1  Or.  283. 
Powers,  State  v.,  10  Or.  145. 
Prather,  Simpson  v.,  5  Or.  86. 
Pratt  V.  King,  1  Or.  49;  251,  328,  494. 
Prentice,  Cook  v.,  13  Or.. 482. 
Prescott   V.    Heilner  and   Cohen,    13 

Or.  200;  195,  371,  454,  499,  500. 
Prescott,  Remillard  v.,  8  Or.  37. 
Pressey,  Fahie  v.,  2  Or.  23. 
Prettyman  v.  Oregon  R'y  &  Nav.  Co., 

13  Or.  341;  196. 
Price  V.  Knott,  8  Or.  438;  285,  286, 

320,  417. 
Price,  Green,  &  Co.  v.  Frankel  and 

Lightner,  1  W.  T.  33;  15. 
Prickett  v.  Cleek,   13  Or.  415;  31,  34, 

120,  214,  335,  505,  538. 
Prindle,  Kruse  v.,  8  Or.  158. 
Provost   V.   Millard,  3   Or.  370;    164, 

274,  342,  349,  352. 
Pruden  v.  Grant  County,  12  Or.  308; 

159,  163,  504. 


644 


Table  of  Cases. 


Puget     Sound    Agricultural    Co.    v. 

Pierce  County,  1  W.  T.  75;  332,  353. 
Puget     Sound    Agricultural    Co.    v. 

Pierce  County,  1  W.  T.  76;  34. 
Puget     Sound    Agricultural    Co.    v. 

Pierce  County,  1  W.  T.    159;  244, 

478,  545,  547,  555,  556. 
Puget  Sound  Commercial  Co.  v.  Tay- 
lor, 2  W.  T.  93;  16,  197,  426. 
Puget  Sound  Iron  Co.  v.  Wortliing- 

ton,  2  W.  T.  472;  28,  40,  47,  52,  55, 

61,  71,  333,  367,  454,  455,  458,  459, 

473,  524. 
Pulse  V.  Hamer,  8  Or.  251;  377,  465, 

521,  523. 
Purdom,  Crewson  v.,  11  Or.  266. 
Purdom,  Ivrewson,  &  Co.  v.,   13  Or. 

563. 
Putnam  v.  Douglas  County,  6  Or.  328; 

125,  193,  230,  233,  305. 
Pyle,     Territory   of    Oregon    ex    rel. 

Kennedy  v.,  1  Or.  149. 
Quinney,  Keith  v.,  1  Or.  364. 
Quigley  v.    McKee,    12  Or.   22;    519, 

562. 
Raleigh,  Chapman  v.,  3  Or.  34. 
Ramp  V.   McDaniel,    12  Or.   108;  10, 

163,  354. 
Ramsby  v.  Beezley,  11  Or.  49;  145. 
Ramsby,  Ladd  and  Bush  v.,   10  Or. 

207. 
Ramsey  v.  Loomis,  6  Or.   367;    114, 

205,  211,  254,  400,  481,  482,  497. 
Ramsey  v.  Pettengill,  14  Or.  207;  31, 

32,  503. 
Rankin  v.  Buckman,  9  Or.   253;    29, 

412,  415,  417,  422,  436,  533. 
Rathborn,  Brown  &  Co.  v.,  10  Or.  158. 
Rayburn,  White  v.,  11  Or.  450. 
Raymond  v.  Coffey,  5  Or.   132;  101, 

205,  207. 
Rea,  Runey  v.,  7  Or.  130. 
Read  v.  Benton  County,   10  Or.   154; 

41,  158,  160. 
Reed  v.  Gentry,  7  Or.  497;  248,  370. 
Reed,  Snow  v.,  14  Or.  342. 
Rees  V.  Reea,  7  Or.  47;  218. 
Rees  V.  Rees,  7  Or.  78;  40,  41. 
Pees,  Steel  v.,  13  Or.  428. 
Reese,  Whitlow  v.,  4  Or.  335. 
Regan  v.  Territory,  1  W.  T.  31;  331. 
Remdall  v.   Swackhamer,  8  Or.  502; 

278,  370,  499,  517. 
Remick,  Willamette  Falls  Co.  v.,   1 

Or.  169. 
Remillard  v.  Prescott,  8  Or.  37;  242, 

400,  401. 
Rcmmington  v.  State,  1  Or.  281;  167, 

297   531. 
Renshaw  v.  Taylor,  7  Or.   315;  242, 

30.3,  337,   398,  406,  409,  441,  4G5, 

496. 


Resolute,        Steamtug,       Steamship 

Northerner  v.,  1  W.  T.  78. 
Renton  v.   St.  Louis,   1  W.    T.    215; 

81,  117,  454,  456,  459,  461,  463. 
Renton,  Macintosh  v.,  2  W.  T.  121. 
Revenue  Cutter,  Goldsmith  v.,  6  Or. 

250. 
Reves,  Coggan  v.,  3  Or.  275. 
Rhea  v.  Umatilla  County,  2  Or.  298; 

161,  353,  503,  545,  548. 
Rice  V.  Rice,  13  Or.  337;  29,  221,  462. 
Rich  V.  Palmer,  6  Or.  339;  549. 
Rich  V.  Palmer,  7  Or.   133;  431,  482, 

549. 
Richards  v.  Fanning,   5  Or.  356;  45, 

64,  365,  366,  461,  462,  471. 
Richards  v.  Nye,  5  Or.  382;  278,  516. 
Richards  v.  Snider,   11  Or.  197;  203, 

205,  375,  521. 
Richards  v.  Snider  and  Crews,  11  Or. 

501;  212,  375,  430,  432,  478,  521. 
Richards,  CreWs  and  Snider  v.,  14  Or, 

442. 
Richardson   v.  Fuller   &   Co.,   2   Or. 

179;  333,  445. 
Packard  v.  Rickard,  9  Or.  168;  217. 
Rickey  v.  Ford,  2  Or.  251;  44,  53. 
Rickey,  Woodsides  v.,  1  Or.  108. 
Riddle,  Wood  v.,  14  Or.  254. 
Riley,  Levy  v.,  4  Or.  392. 
Riley,  Willamette  Falls  Co.  v.,  1  Or. 

183. 
Rinehart,  Fordice  v.,  11  Or.  208. 
Risley,  Ritchey  v.,  3  Or.  184. 
Risley,  Taggart  v.,  3  Or.  306. 
Risley,  Taggart  v.,  4  Or.  235, 
Ritchey  v.  Risley,  3  Or.  184;  336,  382. 
Robbins  v.  Baker,  2  Or.  52;  25. 
Rol)bins   v.    Benson,    11    Or.    514;  4, 

243,  455,  476. 
Robbins,  Coffman  v.,  8  Or.  278. 
Roberts  v.   Garland,  1  Or.  332;  140, 

154,  575. 
Roberts  v.  Lucus,  1  W.  T.  205;  364, 

478,  555,  556. 
Roberts  v.  Sutherlin,  4  Or,  219;  74, 

403,  408,  465. 
Roberts,  Crawford  v.,  8  Or.  324. 
Roberts,  Sutherlin  v.,  4  Or.  378. 
Roberts  and  Miner  v.  Bush,  1  W.  T. 

181;  53,  55,  59. 
Roberts  and  Hoyt  v.  Tucker,  1  W.  T. 

179;  37,  42,  50,  53,  55,  59. 
Rodolph  V.  Mayer,  1  W.  T.   133;  81, 

146,  248,  332,'  467,  519,  538. 
Robertson  v.  Groves,  4  Or.  210;  228, 

411,  436. 
Robertson,  Mays  v.,  13  Or.  214. 
Robinson  v.  Coffin,  2  W.  T.  251;  201. 
Robinson,  Felger  v. ,  3  Or.  455. 
Rochester  v.   Rochester,   1   Or.   307; 
,    220,  536. 


Table  of  Cases. 


645 


Rodney,  Page  v.,  2  "W.  T.  461. 
Roeder,  Peabody,  &  Co.  v.  Brown,  1 

W.  T.   112;  2S,  93,   325,  332,   454, 

469. 
Rogers  v.   Wallace,   10  Or.  387;  67, 

250   366. 
Rogers,  Parker  v.,  8  Or.  183. 
Rogue  River  Mining  Co.  v.  Walker, 

1  Or.  341;  62,  466. 
Rohr  V.  R-icon,  13  Or.  350;  134,  143, 

401. 
Rohr  V.  Isaacs,  8  Or.  451;  57,  64,  365, 

370,  374,  460,  470. 
Rolfes  V.  Russel,  5  Or.  400;  115,  193, 

290.  370. 
Rosen  v.  Warren,  2  Or.  17;  88. 
Roseburg  v.  Abraham,  8  Or.  509;  115, 

420,  434. 
Rosencrantz  v.   Territory,   2  W.    T. 

267;  313,  314,  359. 
Rosendorf  v.   Baker,   8  Or.   240;  65, 

137,  254,  303,  365,  390,  508. 
Rosenthal  v.  Schneider,  2  W.  T.  144; 

So,  294,  323. 
Rosa,  Coleman  v.,  14  Or.  349. 
Rottner,  Droudhat  v.,  13  Or.  493. 
Rourke,  Ewing  v.,  14  Or.  514. 
Rowland  v.  Warren,  10  Or.  129;  212, 

277,  282,  573. 
Rowland,  Newby  v.,  11  Or.  133. 
Roy  V.   llorsley,  6  Or,  270;  41,  247, 

435,  517. 
Roy  V.  Horsley,  6  Or.  382;  330,  352, 

350,  4G9,  501. 
Ruble  V.  Coyote  G.  &  S.  M.  Co.,  10 

Or.  39;  100,  236,  320,  441. 
Ruble,  Coyote  G.  &  S.  M.  Co.  v.,  8 

Or.  284. 
Ruble,  Coyote  G.  &  S.  M,  Co.  v.,  9 

Or.  121. 
Rubl  ,  Kelly  v.,  11  Or.  75. 
Ruckles  V.  State,  I  Or.  347;  96,  160, 

510. 
Rugh  V.  Ottenheimer,  6  Or.  231;  27, 

120,   123,    124,  242,  273,  310,   395, 

531. 
Rummell,  Trabant  v.,  14  Or.  17. 
Runcy  V.  Rca,  7  Or.  1.30;  383. 
Russel,  Pitzer  v.,  4  Or.  124. 
Russul,  Rolfes  v.,  5  Or.  400. 
Russell  V.  Lewis,  3  Or.  380;  8,  161, 

249.  252,  353,  356. 
Russell  V.  Swift,  5  Or.  233;  114,  402. 
RusscU,  Woissinan  v.,  10  Or.  73. 
Rutherford  v.  Thompson,  14  Or.  236; 
.   11,  146. 

Rutherforil,  Adams  v.,  13  Or.  78. 
Ryan   v.  Harris,  2  Or.   175;  31,   123, 

354,  372,  415. 
Salem  Co.,  (,'ity  of,  Kothenberthal  v., 

13  Or.  604. 
Salein,  Salem  Water  Co.  v.,  5  Or.  29. 


Salem,  Sheridan  v.,  14  Or.  328. 

Salem,  Wilson  v.,  3  Or.  482. 

Salem   Flouring    Mills   Co.,    City   of 

Salem  Co.  v.,  12  Or.  374;  199,  569. 
Salem  Flouring  Mills  Co.,  Tucker  v., 

13  Or.  28. 
Salem  Water  Co.  v.  Salem,  5  Or.  29; 

123,  412. 
Salmon  v.  Olds  and  King,  9  Or.  488; 

61,  66,  144,  194,  365,  366,  429. 
Sanford  v.  Wheelan,  12  Or.  301;  521. 
Sargent  v.  Umatilla  County,   13  Or. 

442;  283. 
Saubert  &  Co.  v.  Conley  and  Leasure, 

10  Or.  488;  118. 
Saunders  v.  Pike,  6  Or.  312;  41,  330, 

373. 
Saunders,  State  v.,  14  Or.  300. 
Savage  v.  Glenn,  10  Or.  440;  29,  71, 

141,  195. 
Savage,  Glenn  v.,  14  Or.  567. 
Savage  v.   Savage,    10  Or.   331;   220, 

292,  468. 
Savage  v.  Savage,  12  Or.  459;  23,  293, 

510,  559. 
Savage,  Cartright  v.,  5  Or.  397. 
Savage,  English  v.,  5  Or.  518. 
Savier,  Burnside  v.,  6  Or.  154. 
Sax,  Kennard  v.,  3  Or.  203. 
Saxon  V.  Conger,  6  Or.  388;  119,  168, 

379. 
Sayward  v.  Guye,  2  W.  T.  420;  55, 

60. 
Schaer,  Wineburgh  v.,  2  W.  T.  32a 
Scheland  v.  Erpelding,  6  Or.  258;  27, 

135,  141,  102,  238,  462,  515. 
Schilling  v.  Territory,  2  W.  T.  283; 

176,  246,  297,  314,  359,  563. 
Schirott  V.  Phillippi,  3  Or.  484;   31, 

503. 
Schlussel  and  Rosen  v.  Warren,  2  Or. 

17;  88. 
Schmidt  v.  Vogt,  8  Or.  344;  485,  509, 

554. 
Schmidt,  Portland  v.,  13  Or.  17. 
Schmidt,  Williams  v.,  14  Or.  470. 
Schmieg  v.  Wold,  1  W.  T.  472;  64, 

365,  367,  511. 
Schneider,  In  re,  11  Or.  288;  97,  388, 

412. 
Schneider  v.  Hass,  14  Or.  174;  578. 
Schneider  v.  Sears,  13  Or.  69;  78,  79, 

116,  275,  278,  283,  518. 
Schneider  v.  Wliite,  12  Or.  503;  116, 

134,  143,  378. 
Schneider,  Hexterv.,  14  Or.  184. 
Schneider,  Rosenthal  v.,  2  W.  T.  144- 
Schotield,  Brazce  v.,  2  W.  T.  209. 
School   District,   Stephens  v.,   6   Or. 

353. 
School  District  No.  1,  Brown  v.,  12 

Or.  345. 


646 


Table  of  Cases. 


School  District  No.  1,  Portland  Lum- 
bering and  Mfg.  Co.  v.,  13  Or.  2S3. 

School  District  No.  5,  Stackpole  v.,  9 
Or.  508. 

School  District  No.  15,  Holmes  v.,  11 
Or.  3:i2. 

School  Land  Com'rs  v.  Wiley,  10  Or. 
So;  205,  207,  345,  409,  445,  549. 

Schulderman,  Buchanan  v.,  11  Or. 
150. 

Schutz  V.  Dalles  Military  Road,  7  Or. 
259;  194,  305. 

Schwabacher  v.  Wells,  1  W.  T.  506; 
42,  43,  CO,  352,  467. 

Schwabacher  Bros.  &  Co.,  Murne  v., 
2  W.  T.  130. 

Schwabacher  Bros.  &  Co.,  Mume  v., 

2  W.  T.  191. 

Schwartz,  Marx  and  Jorgensen  v.,  14 

Or.  177. 
Scoggin  V.  Hall,  12  Or.  372;  41,  344, 

374. 
Scoggin,  Oregon  Central  R.  R.  Co.  v,, 

3  Or.  101. 

Scoland,  Baxter  v.,  2  W.  T.  86. 

Scott  V.  Cook,  1  Or.  24;  61. 

Scott  V.  Oregon  R'y  &  Nav.  Co.,  14 

Or.  211;  420,  493. 
Scott,  Bigclow  v.,  2  W.   T.  378. 
Scott,  Taylor  v.,  10  Or.  483. 
Scovill  V.  Barney,  4  Or.  288;  25,  290. 
Sears  v.  Aljrams,  10  Or.  499;  105, 106, 

145,  564. 
Sears  v.  McGrew,  10  Or  48;  91,  143, 

327,  331. 
Sears,  Drake  v.,  8  Or.  209. 
Sears,  Habersham  v.,  11  Or.  431. 
Sears,  Ladd  and  Bush  v.,  9  Or.  244. 
Sears,  Murphy  v.,  11  Or.  127. 
Sears,  Dahms  v.,  13  Or.  47. 
Sears,  Gcrdes  v.,  13  Or.  358. 
Sears,  Schneider  v.,  13  Or.  69. 
Seat  of   Government   Case,   1  W.  T. 

115;  130,  513,  529,  5.3a 
Seattle  v.  Buzby,  2  W.  T.   25;   367, 

415,  423. 
Seattle  v.  Yesler,  1  W.  T.  571;  414, 

418,  419,  532,  547. 
Seattle,  Collins  v.,  2  W.  T.  354. 
Seattle  Coal  Co.   v.  Lewis,   1   W.  T. 

488;  33. 
Seatae  and  Walla  Walla  R.  R.  Co.  v. 

Ah  Kow,  2  W.  T.  30;.  50,  51,  70, 

77,  85,  156,  272,  385. 
Sebastian,  Seely  v. ,  3  Or.  563. 
Sjbasiiau,  Seely  v.,  4  Or.  25. 
Se^llak  V.  Sedlak,  14  Or.  540;  344,  376. 
vSeeley  v.  Sabastian,  3  Or.  563;  40,  44. 
Saoly  V.  Sebastian,  4  Or.  25;  118,  161, 

193,  215.  529. 
Selby  V.  Portland,  14  Or.  243;  437, 

4ul,  505. 


Seller  v.  Steamship  Pacific,  1  Or.  409; 

111,  249,  253,  421. 
Sellers  v.  Corvallis,  5  Or.  273;  31,  32, 

373,  415,  503. 
Sellwood  V.  Gray  and  De  Lashmutt, 

11  Or.  534;  277,  403,  404,  405,  406. 
Sellwood,  De  Lashmutt  v.,  10  Or.  51. 
Sellwood,  De  Lashmutt    v.,    10   Or. 

319. 
Sels,  Grant  County  v.,  5  Or.  243. 
Settlemier  v.  Newsome,   10  Or.  446; 

227. 
Sewell,  Mumford  v.,  11  Or.  67. 
Shannahan,  Hillman  v.,  4  Or.  163. 
Shapoonmash  v.  United  States,  1  W. 

T.  188;  171,  172,  187,  248,311,  357. 
Sharflf,  Jackson  v.,  1  Or.  246. 
Sharp,  Long  v.,  5  Or.  438. 
Shartle  v.  Hutchinson,  3  Or.  337;  193, 

519. 
Shattuck  V.  Smith,  5  Or.  125;  64,  133, 

140,  365,  433,  550. 
Shattuck,  Smith  v.,  12  Or.  362. 
Shaw  V.  Oswego  Iron  Co.,  10  Or.  371; 

246,  321,  5G6,  567,  569. 
Shaw,  Knott  v.,  5  Or.  482. 
Shelby,  Williams  v.,  2  Or.  144. 
Shei^herd  v.  Hawley,  4  Or.  206;  245. 
Sheppard  v.  Yocum,  10  Or.  402;  120,. 

145,   261,  263,  266,  472,,  526,  576, 

578. 
Sheppard  v.  Yocum,  11  Or.  234;  33, 

79,  338,  474. 
Sheridan  v.  Salem,  14  Or.  328;    129, 

196,   272,   414,  415,  421,  423,  424, 

522,  530,  535. 
Sheridan  v.  McMuUen,  - 12  Or.   150; 

321,  565. 
Sheriff  of  Lewis  County,  Hogue  v. ,  1 

W.  T.  172. 
Sherman  v.  Osborn,  8  Or.  66;  25. 
Sherwin,  Smith  v.,  11  Or.  269. 
Sherman,  Swift  v.,  2  Or.  97. 
Ship   Challenger,  Smith  v.,  2  W.  T. 

447. 
Shirley  v.  State,  1  Or.  269;  177,  289, 

561. 
Shirley,  Hannah  v.,  7  Or.  115. 
Shively  v.  Hume,  10  Or.  76;  434,  567, 

568. 
Shively  v.  Parker,  9  Or.  500;  236,  292, 

486,  558. 
Shively  v.  Welch,  2  Or.  288;  202,  210, 

241,  400. 
Shively,  Johnson  v.,  9  Or.  333. 
Shively,  Wilson  v.,  11  Or.  215. 
Shocklcy  v.  Brown,  1  W.  T.  464;  103, 

117,  237,  4.33,  477,  483,  489. 
Shook   v.   Colohan,    12   Or.   239;    58, 

567. 
Shorey  v.  Wyckoff,  1  W.  T.  348;  42. 
Shortesa  v.  Wirt,  1  Or.  90;  2SS. 


Table  of  Cases. 


647 


Shumway  v.  Baker  County,  3  Or.  246; 

548. 
Siddal,  Jacobsen  v.,  12  Or.  280. 
Siglin,  Jackson  v.,  10  Or.  93. 
Silver,  Huimer  v.,  2  Or.  336. 
Silver  Hill  Mining  Co.,  Uodges  and 

Wilson  v.,  9  Or.  200. 
Simison  v.  Simison,  9  Or.  335;  48. 
Simon  v.  Brown,  5  Or.  285;  71,  104, 

555,  565. 
Simon  v.  Durham,  10  Or.  52;  54,  228, 

394. 
Simon  v.  Portland  Common  Council, 

9  Or.  437;  228,  353,  436^  505. 
Simon,  Kafka  v.,  3  Or.  585. 
Simonds.  Lee  v.,  1  Or.  158. 
Simonds,  Steamer  Senorita  v.,  1  Or. 

274. 
Simpson  V.  Bailey,  3  Or.  515;  123,  164, 

530. 
Simpson  v.    Brown  Bros.    &   Co.,    1 

W.  T.  247;  84,  476. 
Simpson  v.  Carson,  11  Or.  361;  136, 

137,  258,  471,  551. 
Simpson  v.  Prather,  5  Or.  86;  53,  327, 

330,  458,  401. 
Sims,  Dawson  v.,  14  Or.  561. 
Singer,  Partlow  v.,  2  Or.  307. 
Sin-^cr  Mfg.  Co.  v.  Graham,  8  Or.  17; 

45,  123,  137,  148,  508,  §30. 
Sires  v.  Newton,  1  W.  T.  356;  273, 

280,  501. 
Skellinger  v.  Smith,  1  W.  T.  369;  6, 

209,  213,  251,  253,  430,  432,  464. 
Sliker,  Multnomah  County  v.,  10  Or. 

65. 
Slocum,  Krewson  &Co.  v.,  13  Or.  563. 
Sloop  Christina,  Waling  v.,  1  Or.  430. 
Sloop  Leonede   v.   United   States,    1 

W.  T.  153;  16,  156,  339. 
Sloper  and  Kelso  v.  Carey,  9  Or.  511; 

41,  120. 
Sly,  State  v.,  4  Or.  277. 
Smith  V.  Butler,  11  Or.  46;  114,  258, 

401,  454,  458. 
Smith  V.  Caro  and  Baum,  9  Or.  278; 

89,  90,  91,  258. 
Smith  V.  Case,  2  Or.  190;  77,  86,  138, 

540. 
Smith  V.  Cox,  9  Or.  327;  99,  250,  290. 
Smith  V.  Cox,  9  Or.  475;  61,  194,  270, 

292. 
Smith  V.  Ellendale  Mill  Co.,  4  Or.  70; 

31    32   334   5.37. 
Smith  v'.  Foster,  5  Or.  44;  138,  140, 

433,  448,  453,  550. 
Smith  v.  Gardner,  12  Or.  221;  200, 

201,  2.35,  307,  320,  367,  381,  434, 

556. 
Smith   V.  Griswold,  6  Or.  440;  235, 

249,  290,  291,  511. 
Smith  V.  Harris,  7  Or.  76;  73,  269,  319. 


Smith  V.  Ingles,  2  Or.  43;  273,  339. 
Smith   V.  Kennedy,   1   W.  T.  55;  4, 

255. 
Smith  V.  King,  14  Or.  10;   394,  518, 

533,  547. 
Smith,  Ladd  and  Bush  v.,  6  Or.  316. 
Smith  v.  Lownsdale,  6  Or.  78;  88,  90, 

365,  368. 
Smith  V.   Shattuck,   12  Or.   362;  20, 

205,  225,  255,  371,  472,  548. 
Smith  V.  Sherwin,  11  Or.  269;  315. 
Smith  V.  Ship  Challenger,   2  W.  T. 

447;  19. 
Smith,  Skellinger  v.,  1  W.  T.  369. 
Smith  V.  Smith,   3  Or.  363;  21,  108, 

218,  34.3,  458,  531,  538,  552. 
Smith  V.  Smith,  5  Or.  186;  220,  268, 

308. 
Smith  V.  Smith,  8  Or.  100;  217,  291, 

395. 
Smith  V.  United  States,  1  W.  T.  262; 

31,  165,  171,  172,  177,  181,  183,  184, 

188,  190,   191,  308,   309,  311,   357, 

3G2,  365,  366,  427,  489. 
Smith  Bros.  v.  Wlieeler,  7  Or.  49;  141, 

509,  551. 
Smith,  Bach,  Messe,  &  Co.  v.,  2  W.  T, 

144. 
Smith,  Baxter  v.,  2  W.  T.  97. 
Smith,  Colwell  v.,  1  W.  T.  92. 
Smith,  Dorrisv.,  7  Or.  267. 
Smith,  Faling  v.,  14  Or.  82. 
Smith,  Heneky  v.,  10  Or.  349. 
Smith,  Knighton  v.,  1  Or.  276. 
Smith,  Lambert  v.,  9  Or.  185. 
Smith,  Liimvillev.,  6  Or.  202. 
Smith,  Page  v.,  13  Or.  410. 
Smith,  Porter  v.,  1  W.  T.  608. 
Smith,  Shattuck  v.,  5  Or.  125. 
Smith,  State  ex  rel.  Blanchard  v,,  1 

Or.  250. 
Smith,  State  v.,  11  Or.  205. 
Smith,  Watson  v.,  7  Or.  448. 
Smith,  Weise  v.,  3  Or.  445. 
Smith,  Willamette  Falls  Co.  v.,  1  Or. 

171. 
Smith,  Willamette  Falls  Co.  v.,  1  Or. 

181. 
Smith,  Wolf  v.,  6  Or.  73. 
Smith  and  Forward,  Cox  v.,   10  Or. 

419. 
Snider  v.  Lehnlierr,  5  Or.  385;  140, 

520. 
Snider,  Jones  v.,  8  Or.  127. 
Suider,  Richards  v.,  11  Or.  197. 
Snipes   V.   Beezley,    5   Or.    420;    157, 

274,  342. 
Snodgrass  and  Minor,  Kearney  v.,  10 

Or.  181. 
Snodgrass,  Kearney  v.,  12  Or.  311. 
Snow  V.  Reed,  14  Or.  342;  84,  432, 

452. 


648 


Table  of  Cases. 


Snyder  v.  Vannoy,   1  Or.   344;   289, 

343,  400. 
Snyder  and  Crews,  Richards  v.,  11  Or. 

501. 
Sohns,  Cascades  R.  R.  Co.  v.,  1  W.  T. 

557. 
Solomon  v.  Bushnell,  11  Or.  277;  74, 

564. 
Southwell  V.  Beezley,  5  Or.  143;  363, 

509,  522. 
Southwell  V.  Beezley,  5  Or.  458;  135, 

138,  429,  509,  522. 
Starks  v.   Erown,  2  W.  T.  426;  238, 

345  479. 
Spaul'ding'v.  Kennedy,  6  Or.  208;  275, 

498. 
Spear  v.  Cook,  8  Or.  380;  208,  223, 

556,  508. 
Specht  V.  Allen,  12  Or.  117;  29,  292, 

331,  458,  472. 
Spencer,  Newton  v.,  3  Or.  548. 
Spencer,  State  v.,  6  Or.  152. 
Spores  V.  Boggs,  6  Or.   122;  456,  498. 
Spores,  State  v. ,  4  Or.  198. 
Sprague  v.  Fletcher,  8  Or.  367;  90. 
Springer  v.   Young,   14  Or.   280;  20, 

317,  482,  483,  559. 
Springfield  Milling  Co.  v.  Lane  Co., 

5  Or.  265;  103,  110,  142,   104,  304, 

436,  528,  533. 
Stackpole  v.  School  District  No.  5,  9 

Or.  508;  116,  512. 
Stafford,  Stark  v.,  14  Or.  317. 
Stannio  v.  Nicholson,  2  Or.  332;  279, 

339,  404. 
Stannus,   Willamette  Freighting  Co. 

v.,  4  Or.  201. 
Stark  V.   Jenkins,   1   W.  T.  421;  37, 

352 
Stark  V.  Olney,  3  Or.   88;  154,   192, 

204,  206,  246,  324,  535. 
Stark,  Coleman  v.,  1  Or.  115. 
Stark,  Starr  v.,  7  Or.  500. 
Starks  v.  Stafford,  14  Or.  317;  39,  49. 
Starr  v.   Stark,  2  Or.   118;  479,  480, 

488. 
Starr  v.   Stark,  7  Or.   500;  337,  398, 

558. 
Starr,  Briney  v.,  6  Or.  207. 
Starr,  Nino  v.,  8  Or.  49. 
State  V.  Almxins,  11  Or.  169;  66,  67, 

82,  175,  177,  179,  183,  186,  190,  215, 

201,  263,  270,  271,  308,  309,  310,  576, 

578. 
State  V.  Ah  Lee,  7  Or.  237;  177,  183, 

263,  .308,  309. 
State  V.  Ah  Lee,  8  Or.  214;  186,  309, 

310,  36S,  576. 
State  V.  Ah  Sam,  7  Or.  477;  179,  451, 

502. 
State  V.   Ah  Sam,   14  Or.  347;   174, 

175,  181,  304. 


State  V.  Anderson,  10  Or.  448;  66,  82, 

127,   177,  183,  186,    190,   215,  260, 

263,  264,  308,  309,   310,   358,  366, 

575. 
State  V.  Bacon,  13  Or.  143;  21,  181, 

577,  578. 
State  V.  Becker,  12  Or.  318;  30,  45, 

46,  62,  190,  368,  427,  428. 
State  V.   Benjamin,    2  Or.   125;  388, 

534. 
State  V.  Bergman,  6  Or.  341;  168,  172, 

174  413  433. 
State  V.  Bertram!,  3  Or.  61;  246,  308. 
State  V.  Bovee,  11  Or.  57;  50,  189. 
State  V.  Brown,  2  Or.  221;  129,  158, 

167,  171,  856. 
State  V.   Brown,   5  Or.   119;  32,   41, 

189. 
State  V.  Brown,  7  Or.  186;  61,  64,  65, 

169,   173,   174,  309,   361,   364,  365, 

368,  506. 
State  V.  Brown,  10  Or.  215;  4,  338, 

513. 
State  V.  Bruce,  5  Or.  68;  173,  228. 
State,  Burchard  v.,  2  Or.  78. 
State  V.  Cannon,  11  Or.  313;  171. 
State  V.  Carr,  6  Or.  133;  6,  168,  174, 

178,  287,  297. 
State  V.  Cartwright,  10  Or.  193;  186, 

187,  371. 
State  V.  Cliadwick  and  Brown,  10  Or. 

423;  3,  7,   145,  442,  455,  485,  522. 
State  V.   Cliadwick,   10  Or.  465;   97, 

436. 
State  V.  Church,  5  Or.  375;  103,  124, 

319,  490,  506. 
State  V.  Clark,  9  Or.  466;  262,  337, 

522,  576. 
State  V.  Connally,  3  Or.  69;  177,  182, 

183,  30S. 
State  V.  Cornelius,  5  Or.  46;  78,  379, 

516. 
State  V.  Cutting,  3  Or.  260;  168,  178, 

249,  381,  387,  388. 
State  V.  Dale,  8  Or.  229;  144,  169,  174, 

361,  517. 
State  V.  Dodson,  4  Or.  64;  173,  178, 

182,  189,  308,  529,  553. 
State  V.  Doty,  5  Or.  491;  72,  173,  178, 

182. 
State  V.  Dougherty,  4  Or,  200;   173, 

.391. 
State  V.  Douglas  County  R.  Co.,   10 

Or.  185;  103,  307. 
State  V.  Douglas  County  R.  Co.,  10 

Or.  198;  126,  442,  490. 
State  V.  Drake,  11  Or.  396;  30,  45,  46, 

61,  62,  63,   66,   83,   348,  427,  428, 

575. 
State  "v.  Ducker,  8  Or.  394;  61,  64, 

169,  379. 
State  V.  Dunbar,  13  Or.  591;  184,  438. 


Table  of  Cases. 


649 


State  V.  Ellis,  3  Or.  497;  38,  47,  189, 

507. 
State  V.  Fitzhugh,  2  Or.  227;  2,  30,  62, 

63,  120,  177,  190,  263,  265,  308,  358, 

361,  369,  427,  575. 
State  V.  Garrand,  5  Or.  156;  261,  309. 
State  V.  Garrand,  5  Or.  210;  61,  178. 

182,   183,   186,  261,  262,  265,  268, 

309,  362,  365. 

State  V.  Gaunt,  13  Or.  115;  110,   113, 

170,  528,  534. 
State  V.  Gitt  Lee,  6  Or.  425;  108,  174, 

297. 
State  V.  Glass,  5  Or.  73;  2,  61,  177, 

178,  183,  260,   262,  203,  308,  309, 
3G4. 

State  V.  Grant,  7  Or.  414;  183,  309, 

310,  363,  364,  367. 

State     V.     Grover,     Chadwick,     and 

Fleischner,  10  Or.  66;  67,  497. 
State  V.  Hale,  12  Or.  352;  180,   248, 

379. 
State  V.  Haj's,  2  Or.  314;  96,  98,  540. 
State  V.  Hibernia  S.  &  L.  A.,  8  Or. 

396;  85,  125,  147,  402. 
State  V.  Hoyt,  2  Or.  246;  415,  435. 
State  V.  Hulin,  2  Or.  307;  147,  154, 

512. 
State  V.  Hume,  12  Or.  133;  174,   175, 

307,  434,  433. 
State  V.  Jackson,  9  Or.  457;  45,  63, 

66,  574. 
State  V.  Jacobs,  11  Or.  314;  321,  394. 
State  ex  rel.  Whitney  v.  Johns,  3  Or. 

533;  163,  435. 
State  V.  Johnson,  2  Or.  115;  167,  171, 

336,  37S,  562. 
State  V.  Johnson,  7  Or.  210;  169,  309. 
State  V.  Justus,  11  Or.  178;  65,   180, 

182,  186,  261,  271,  310,  358,  422. 
State,  Ketchum  v.,  2  Or.  103. 
State  V.  Kirk,  10  Or.  505;  2,  127,  174. 
State  V.  Lawrence,   12  Or.  297;  127, 

175,  358. 
State  V.  Lee  Ping  Bow,  10  Or.  27;  66, 

82,  174,  179,  186,  215,  363,  371,  379, 

405. 
State  V.  Lee  Yan  Yan,  10  Or.  365; 

45,  64,  67,  173,   174,   190,  366,  379. 
State  V.  Leonard,  3  Or.  157;  185,  266, 

468. 
State  V.  Lurch,  12  Or.  95;  68,  87,  180, 

182,  282,  289. 
State  V.  Lurch,   12  Or.  99;  170,  175, 

179,  180,  191,  289,  578. 

State  V.  Lurch,  12  Or.  104;  175,  180, 

263,  289,  576. 
State  V.  Mackey,  12  Or.  154;  30,  62, 

180,  181,   190,   264,  265,  309,  311, 
364,  367,  427,  576. 

State  ex  rel.  JIahouey  v.  McKinaon, 
8  Or.  485;  54. 


State  ex  rel.  Mahoney  v.  McKinnon, 

8  Or.  487;  21,  38,  65,  66,  133,  350, 

351,  357. 
State  ex  rel.  Mahoney  v.  McKinnon, 

8  Or.  493;  108,  228,  352,  412,  436, 

490. 
State  V.  Mah  Jim,   13  Or.  235;   181, 

271,  311,  577,  578. 
State  V.  Mana,  2  Or.  238;  167,  297. 
State  V.  McCormack,  8  Or.  236;  125, 

169,  174,  182;  326,  379. 
State  V.  McDonald,  8  Or.  113;  30,  62, 

263,  361,  427,  428,  576. 
State  V.  McKiumore,  8  Or.  207;  21, 

48,  56. 
State  V.  Moy  Looke,  7  Or.  54;   135, 

178,  246,  254,  269,  363. 

State  V.  Multnomah  County,   13  Or. 

287;  325,  544. 
State  V.   Munds,  7  Or.  80;  274,  330, 

340,  431. 
State  V.  Murray,  11  Or.  413;  182,  250, 

261,  309,  310,  323,  575,  578. 
State  V.  Odell,  8  Or.  30;  2,   179,  269. 
State  V.  Oificer,  4  Or.   180;  161,  304, 

354,  356. 
State  V.  ONeil,  7  Or.   141;  340,  487. 
State  V.  O'Neil,   13  Or.   183;   21,  68, 

181,  184,  180,  271,  311,  468,  578. 
State  V.  Oregon  Central  R.  R.  Co.,  2 

Or.  255;  31,  154. 
State  V.  Packard,  4  Or.  157;  173,  282. 
State,  Palmer  v. ,  2  Or.  63. 
State  V.  Perham,  4  Or.  188;  173,  328. 
State   V.    Powers,    10   Or.    145;    310, 

361,  553. 
State  V.  Saunders,  14  Or.  300;  68,  128, 

179,  184,  191,  265,  361,  578,  579. 
State   ex  rel.  Wilson  v.  Shivch',    10 

Or.  267. 
State  V.  Sly,  4  Or.  277;  73,  108,  108, 

172,  182,  326,  352,  413. 
State  ex   rel.  I31anchard  v.  Smith,   1 

Or.  250;  214. 
State  V.  Smith,  11  Or.  205;    73,   175, 

186. 
State  V.  Spencer,  6  Or.  152;  173,  174, 

451. 
State  V.  Spores,  4  Or.  198;  186,  369, 

471. 
State  V.  Stewart,  11  Or.  52;  73,  169, 

182,  576. 

State  V.  Stewart,  11  Or.  238;  73,  169, 

182,  576. 
State  V.  Sturgess,  9  Or.  537;  298,  534, 

568. 
State  V.  Swayze,  11  Or.  357;  25,  67, 

184,  248,  366,  379,  576. 
State  V.  Sweet,  2  Or.  127;    167,  173, 

229. 
State  V.  Taylor,  3  Or.   10;   167,   173, 

177,  206,  378,  577. 


650 


Table  of  Cases. 


state  V.  TiUey,  9  Or.  125;  169,  313. 
State  V.  Tom,  8  Or.  177;  45,  66,  262, 

264,  36] ,  493. 
State  V.  Tom  Louey,  11  Or.  326;  175, 

371,  508. 
State  V.  Vowels,  4  Or.  324;  168,  173, 

397. 
State  ex  rel.  Shaw  v.  Ware,  13  Or. 

380;    160,  229,  329,  394,  437,  443, 

553. 
State  V.  Whitney,  7  Or.  386;  65,  169, 

182,   183,   186,  308,  309,  328,  358, 

3G5,  436. 
State  V.  Wiley,  4  Or.  184;    120,  123, 

171,  355,  373,  415,  464,  529. 
State  V.  Wilson,  6  Or.   428;    30,  62, 

178,  190,  427,  562. 
State  ex  rcl.  McCormick  v.  Winton, 

11  Or.  456;  83. 
State  V.   Wintzingerode,  9   Or.   153; 

169,  174,  179,  266,  308,  310. 
State   V.   Witham,    "6   Or.  366;     174, 

451. 
State  V.  Wright  and  Harris,   14  Or. 

385;    129,   170,  389,  414,  629,  530, 

535. 
State  V.  Zingsem,  7  Or.  137;  41,  53, 

54,  189. 
State,  Bowen  v.,  1  Or.  270. 
State,  Chapman  v.,  5  Or.  432. 
State,  Crowley  v.,  11  Or.  512. 
State,  Frisbiev.,  1  Or.  248. 
State,  Fridbie  v.,  1  Or.  264. 
State,  Gird  v.,  1  Or.  308. 
State,  Goodall  v.,  1  Or.  333. 
State,  Horner  v.,  1  Or.  267. 
State,  Howell  v.,  1  Or.  241. 
State,  Jennings  v.,  1  Or.  290. 
State,  Multnomah  County  v.,  1  Or. 

358. 
State,  Reramington  v.,  1  Or.  281. 
State,  Ruckles  v.,  1  Or.  347. 
State,  Shirley  v.,  1  Or.  269;  159. 
State  University,  Dunn  v.,  9  Or.  557. 
Stauff,  Noyes  v.,  5  Or.  455. 
Steadman,  Hay  den  v.,  3  Or.  550. 
Steamboat  Zephyr  v.  Brown,  2  W.  T. 

44;  18,  51. 
Steamer  Daisy,  Waddell  v.,  2  W.  T. 

76. 
Steamship  City  of  Panama,  Phelps  v., 

1  W.  T.  518. 
Steamdiip  City  of  Panama,  Phelps  v., 

1  W.  T.  615. 
Steamship  Columbia,  Cutler  v.,  1  Or. 

101. 
Steamship  Columbia,  Williams  v.,   1 

W.  T.  95. 
Steamship  Gazelle  v.  Lake,  1  Or.  119; 

381,  533,  535. 
Steamship    Northerner  v.    Steamtug 

Resolute,  1  W.  T.  78. 


Steamship  Northerner,  Meigs  v.,  1  W. 

T.  78. 
Steamship   Pacific,    Seller  v.,    1   Or, 

409;  15. 
Steamship  Panama,  Edwards  v.,  1  Or. 

418. 
Steamship  Senorita  v.  Simonds,  1  Or. 

274;  28,  62,  455,  524. 
Steamtug  Resolute,  Steamship  North- 
erner v.,  1  W.  T.  78. 
Stearns,  Brauns  v. ,  1  Or.  367. 
Steel  V.  Rees,  13  Or.  428;  34,  50,  58, 

353. 
Steel,'Caplesv.,  7  Or.  491. 
Steeples  v.  Newton,   7  Or.    110;   77, 

142,  262,  489,  576. 
Steger,  Evarts  v.,  5  Or.  147. 
Steger,  Evarts  v.,  6  Or.  55. 
Stephens  v.  Allen,    11  Or.   188;   211, 

212,  257,  258,  403. 
Stephens  v.  Dennison,  1  Or.  19;  273, 

279. 
Stephens  V.  Knott,  2  Or.  304;  135,  285. 
Stephens  V.  Knott,  3  Or.  50;  135,  235. 
Stephens  v.  Murtou,  6  Or.   193;   114, 

290,  400,  497. 
Stephens  v.   Powell,    1  Or.  283;  121, 

285,  289. 
Stephens  V.  School  District,  6  Or.  353; 

512,  546. 
Stephens,  Bonnett  v.,  8  Or.  444. 
Stephens,  Knott  v.,  3  Or.  239. 
Stephens,  Knott  v.,  5  Or.  235. 
Stephens,  Parrish  v.,  1  Or.  59. 
Stephens,  Pai-rish  v.,  1  Or.  73. 
Stephenson,   Canyonrille   and  Gales- 

ville  Road  Co.  v.,  8  Or.  263. 
Stevens  v.    Baker,   1  W."   T.    315;    7, 

237   357   448 
Stewart  v.' McClung,  12  Or.  431;  250, 

273. 
Stewart  v.  Perkins,  3   Or.    508;   22, 

376. 
Stewart  V.  Phy,  11  Or.  335;  402,  450. 
Stewart,  Hancock  v.,  1  W.  T.  323. 
Stewart,  State  v.,  11  Or.  52;  264,  326, 

375. 
Stewart,    State  v.,   11    Or.  238;   264, 

326,  375. 
Stiles  v.    James,  2  W.  T.    194;    116, 

358,  500. 
Stimson  v.  Estes,  3  Or.  521;  496. 
Stinson  v.  Porter,    12  Or.  444;   252, 

263. 
Stitzel,  Dufernoy  v.,  3  Or.  58. 
St.  Louis,  Ronton  v.,  1  W.  T.  215. 
Stock,  Portland  v.,  2  Or.  69. 
Stock,  Corvallis  v.,  12  Or.  391. 
Stoll  V.  Hoback,  2  Or.   225;  31,   372. 
Stone  v.  Cason,  1  Or.  100;  98,  319. 
Stone  V.  Oregon  City  Mfg.  Co.,  4  Or. 

52;  396,  422,  425. 


Table  of  Cases. 


651 


Stone,  Cason  v.,  1  Or.  30. 
Stoao,  Miskel  v.,  1  W.  T.  229, 
Stone,  Perryv.,.2W.  T.  464. 
Story,  Dcmiisoa  v.,  1  Or.  272. 
Stott,  Gastoa  v.,  5  Or.  48. 
Stoiightou,  Griswokl  v.,  2  Or.  61. 
S..aighton,  Baker  v.,  1  Or.  227. 
Stovvbrielge,  Tribou  v.,  7  Or.  156. 
Scowv,!!,  liiv-erarity  v.,  10  Or.  2G1. 
Strang  v.  Keith,  1  Or.  312;  40,  47. 
Scroag  V.  Barniuirt,  5  Or.  49(5;  130, 

274,  337,  339,  341,  347,  o-2o. 
Stro-ig  V.   Barnhart,   G   Or.   93;  247, 

274,  341,  356. 
Sti-ong  V.  Kamm,  13  Or.  172;  61,  66, 

13t,  li3,  256,  259,  366,  524. 
Strong,  Hedg-js  v.,  3  Or.  18. 
Strong,  Torrenee  v.,  4  Or.  39. 
ScrowbriJge  v.   Portland,   S   Or.   67; 

417. 
Stump,  Joy  v.,  14  Or.  361. 
S:"arg>ii>,  Scaic  v.,  9  Or.  537. 
Starteva:i';,  Lulir.3  v.,  10  Or.  170. 
S.ifiern  v.  Chiihol.ii,  1  W.  T.  486;  33, 

35,  79,  81,  .329,  .338,  474. 
Sujetfcev.  Wn:oa,  13  Or.  514;  215,  560. 
S.rj;3uorf  V.  i3ingham,  13  Or.  369;  460. 
Suil:va:i  v.  Orc~oa  ll'y  &  Xav.  Co., 

\2  Or.  392;  195,  263,  271,  397,  424, 

4,)2. 
S-MiiKiero  V.  Harrington,   14  Or.  480; 

31,  32,  503. 
Sa-n  rierj,  Lz^  v.,  2  Or.  263. 
Su.;i  .10"-;,  By  be  J  v.,  4  Or.  354. 
Sur.ip.er,  Fle:clm3r  v.,  12  Or.  161.' 
S. Ill  J  J  V.  :jw2eney,  11  Or.  21;  499. 
Suj:::ri:a,  R^'jcrto  v.,  4  Or.  219. 
SuLjcrlLi  V.  Roberts,  4  Or.  37S;  525. 
S;vac!iaamjr,  McCally  v.,  6  Or.  438. 
S-.7a,2kha.ncr,  Roimlall  v.,  8  Or.  502. 
S'.vr.n-sr.  Zacliary  v.,  1  Or.  92. 
Sr.Mr.z,  McCracken  v.,  5  Or.  62. 
S".var!.j,  Mjaohani  Arms  Company  v., 

2  W.  T.  112. 
Swayzo,  State  v.,  11  Or.  357. 
Sw3jk  V.  Cilbroatli,  11  Or.  516;  355, 

374. 
Swoeney  v.  Jameson,   2  W.   T.   254; 

19S. 
Svv.eiey,  Surles  v.,  11  Or.  21. 
Swccl-,  Sta^e  v.,  2  Or.  127. 
Swot^lo  V.  Wv-lh,  7  Or.  222;  65,  91, 

£3:),  248,  3C3,  370,  450. 
Swift  V.  xMulieyand  Hill,  14  Or.  59; 

20,  102,  212,  226,  276,  371,  460. 
Swft  V.  Stark,  2  Or.  97;  327,   335, 

347. 
Sv/iii,  Russell  v.,  5  Or.  233. 
Tiggarfc  V.  Riolr«y,  3  Or.  306;  28,  206. 
Taggart   v.   Risby,   4  Or.    235;   206, 

210,  241. 
Taggart,  Martin  v.,  14  Or.  165. 


Tatora,  Cressey  v.,  9  Or.  543. 
Tatum  V.  Clierry,  12  Or.  135;  384. 
Taylor  v.   Jenkins,   11  Or.  274;   12U, 

355,  374,  538. 
Taylor  v.  Patterson  &  Co.,  5  Or.  121; 

61,  114,  402. 
Taylor  V.  Taylor,  11  Or.  303;  217. 
Taylor  v.  Umatilla  County,  6  Or.  394- 

401;  73,  82,  283,  531. 
Taylor  v.  Umatilla  County,  6  Or.  401, 
Taylor,  Gilmore  v.,  5  Or.  89. 
Taylor,  Howe  v.,  6  Or.  284. 
Taylor,  Howe  v.,  9  Or.  238. 
Ta3lor,  Humphreys  v.,  5  Or.  260. 
Taylor,  Parker  v.,  7  Or.  435. 
Tavlor,  Renshaw  v.,  7  Or.  315. 
Taylor,  Scott  v.,  10  Or.  483;  288. 
Taylor,  State  v.,  3  Or.  10. 
Taylor,  Welch  v.,  6  Or.  198;  320,  567. 
Taylor,  Nesqually  Mill  Co.  v.,  1  W. 

T.  1. 
Taylor,  Puget  Sound  Commercial  Co. 

v.,  2  W.  T.  93. 
Teal  V.   Collins,  9  Or.   89;   109,  116, 

490. 
Teal,  Holcomb  v.,  4  Or.  352. 
Teller  v.  Brower,  14  Or.  405;  204. 
Teuny   v.   Mulvaney,  8  Or.   129;   66, 

136,  553. 
Tenny  v.    ISIulvaney,  8  Or.  513;  82, 

363,  472,  553. 
Tenny   and   jSIcKenzie   v.    ilulvaney 
and  Bemis,  9  Or.  405;  64,  251,  371, 
553. 
Territory  of  Oregon  v.  CoU\man,  1  Or. 

191;  129,  167,  171,  182,  387. 
Territory  of  Oregon,  Hart  v.,  1  Or. 

122. 
Territory  of  Oregon  v.   King,  1  Or. 

106;  94,  lis. 
Territory  of   Oregon,  Latshaw  v.,    1 

Or.  140. 
Territory   of   Oregon,   Latshaw  v.,   1 

Or.   146;  426. 
Territory  of  Oregon,  Newby  v.,  1  Or. 

163. 
Territory  of  Oregon  v.  Norris,  1   Or. 

107;  94,  118. 
Territory  of  Oregon,  O'Kelly  v.,  1  Or. 

51. 
Territory  of  Oregon,  Wood  v.,  1  Or. 

223. 
Territory  of  Oregon,  Young  v.,  1  Or. 

213. 
Territory  of  Oregon  ex  rel.  Kennedy 

V.  Pyle,  1  Or.  149;  121,  226,  435. 
Terwilliger  v.   Multuoraali  County,  6 

Or.  295;  61,   193,  233,  305. 
The  Pilot,  Thompson  v.,  6  Or.  297. 
The  Dalles  Military  Road,  Schutz  v., 

7  Or.  259. 
Thomas,  Duncan  v.,  1  Or.  314. 


652 


Table  of  Cases. 


Tliomas,  Gray  don  v.,  3  Or.  250. 
Thomas,  McClanev.,  1  Or.  288. 
Thomas,  Moore  v.,  1  Or.  201. 
Thompson  v.  Territory,  1  W.  T.  547; 
45,  179,  180,  18G,  188,  265,  266,  362, 
366,  429,  468,  469,  576,  579. 
Thompson  v.   Backenstos,   1   Or.    17; 

44,  61. 
Thompson,  Gnthrie  v. ,  1  Or.  353. 
Thompson  V.  Hawley,  14  Or.  199;  203, 

521. 
Thompson  v.  jNIultnomah  County,   2 
Or.  34;  108,  304,  313,  349,  352,  356, 
475,  503. 
Thompson  v.    Uglow,  4  Or.  369;  63, 

223. 
Thompson  v.   Wolf,  6  Or.  308;  108, 

115,  224,  288,  355,  373. 
Thompson  v.  Woolf,  8  Or.  454;  264, 

465,  489. 
Thompson,  Kelly  v.,  3  Or.  189. 
Thompson,  Mogan  v.,  13  Or.  230. 
Ihompson,  Phillippi  v.,  8  Or.  428. 
Thompson,  Rutherford  v.,  14  Or.  236. 
Thompson,  White  v.,  3  Or.  115. 
Thorp,  Phillips  v.,  10  Or.  494. 
Thorndike  v.  Tliorndike,  1  W.  T.  175; 

156,  219,  332. 
Ticheuor  v.  Coggins,  8  Or.  271;  75,  78, 

325,  441. 
Tichenor  v.  Knapp,  6  Or.  205;  465, 

489. 
Tierney  v.  Tiernev,  1  W.  T.  568;  8, 
34,  35,  69,  70,  216,  219,  220,  221, 
336,  339,  473,  474,  475. 
Tilley,  State  v.,  9  Or.  125;  381. 
Tippin  V.  Ward,  5  Or.  450;  140,  193, 

263,  268,  429. 
Tobey,  Ferguson  v.,  1  W.  T.  275. 
Toby  V.  Ferguson,  3  Or.  27;  347,  349, 

461. 
Todd  V.   Huntington,   13   Or.  9;   77, 

142,  489. 
Toild,  Trullenger  v.,  5  Or.  36. 
Tolmie  v.  Dean,  1  W.  T.  46;  53,  110, 
117,  255,  850,  351,    363,  428,  430, 
454,  533. 
Tolmie,  Baldro  v.,  1  Or.  176. 
Tolmie  v.  Otchin,  1  Or.  95;  329,  475. 
Tolman,  Neil  v.,  12  Or.  289. 
Tom,  State  v.,  8  Or.  177. 
Tom,  United  States  of  America  v.,  1 

Or.  26. 
Tom  Louey,  State  v.,  11  Or.  326. 
Tompkins   v.   Clackamas  County,   11 

Or.  364;  161,  163,  307,  495,  552. 
Tont^ue  v.  Gaston,   10  Or.  328;    199, 

320. 
Torrencc  v.  Strong,  4  Or.  39;  81,  247, 

369,  458,  462,  525. 
Town  of  I.a  Fayette  v.  Clark,  9  Or. 
225;  33,  505. 


Trabant  v.  Rummell,  14  Or.  17;  80, 

531. 
Trainor  v.  Multnomah  County,  2  Or. 

214;  164,  381,  388,  402. 
Tribou  v.  Strowbridge,  7  Or.  156;  77, 

125,  142,  360,  489,  496. 
Trullenger,  Oregon  Iron  Co.  v.,  3  Or.  1. 
Trullenger  v.  Todd,  5  Or.  36;  31,  32, 

334,  537. 
Trullinger  v.  Kofoed,  7  Or.  228;  383, 

409,  450. 
Trullmger  v.  Kofoed,  8  Or.  436;  276, 

280. 
Trullinger,  Oregon  Ii'on  Co.  v.,  2  Or. 

311. 
Trullinger,  Jackson  v.,  9  Or.  393. 
Trullinger,  iNIarsh  v.,  6  Or.  356. 
Trustees  M.   E.  Church  v.  Adams,  4 

Or.  76;  440,  557,  563. 
Trustees  of  T.  A.  and  P.  U.,  Tyler  v., 

14  Or.  485. 
Trutch  V.  Buftnell,  5  Or.  504;  301,  406, 

408,  440. 
Trutch  V.  Bunnell,  11  Or.  58;  57,  301, 

403,  408,  440. 
T'Vault,  Marlin  v.,  1  Or.  77. 
Tualatin   Academy  and   Pacific  Uni- 
versity, Tyler  v.,  14  Or.  485. 
Tucker  v.  Salem  Flouring  Mills  Co., 

13  Or.  28:  30,  62,  64,  68,  195,  368, 
427,  428,  472,  562,  569. 

Tucker,  Roberts  and  Hoyt  v.,   1  W. 

T.  179. 
TurnbuU  v.  Farnsworth,  1  W.  T.  444; 

75,  144,  515. 
Turner  v.  Corbett,  9  Or.  79;  116,  141, 

456. 
Turner  v.  Parker,  14  Or.  340;  103. 
Tustin  V.   Gaunt,   4  Or,   305;  8,   161, 

246,  348,  349,  350,  353,  494. 
Twilight,  Bergman  and  Berry  v.,  10 

Or.  337. 
Tyler  v.  Trustees  of  T.  A.  and  P.  U. 

14  Or.  485;  149,  156,  244,  301,  328, 
443,  472,  560. 

Uglow,  Thompson  v. ,  4  Or.  369. 
Umatilla  County,  Rhea  v.,  2  Or.  298. 
Umatilla  County,   Sargent  v.,  13  Or. 

442. 
Umatilla  County,  Tavlor  v.,  6  Or.  394. 
Umatilla  County,  Taylor  v.,  6  Or.  401. 
Umatilla  County,  Vmcent  v.,  14  Or. 

375. 
Underwood  v.  French  and  Moody,  6 

Or.  (i6;  252,  257,  348,  502. 
Union,  Citj''  of,  Nodine  v.,  13  Or.  587. 
Union,  City  of,  Walsh  v.,  13  Or.  589. 
Union  County,   Heilnor  v.,  7  Or.  83. 
United  States  v.  Tom,  1  Or.  20;  171, 

318,  531. 
United  States,  Bennet  v.,  2  W.  T. 

170. 


Table  of  Cases. 


United  States,  Coaway  v.,  2  W.  T 
•>.JG. 

United  States,  Fowler  v.,  1  W.  T.  3 
United  States,  Palmer  v.,  1  W.  T.  5 
United  States,  Leonide  v     I  W    T 
153.  ■' 

^«r^i  ''5t-ites,    Shopoonmash    v.,    1 

VV.   1.  188. 
United  States,  Watts  v.,  1  W.  T.  288, 
united  States,  Smith  v.,  1  W.  T.  2ij'^ 
Van  Aerman,  Gleason  v.,  9  Or.  343 
Vandolf  V.  Otis,  1  Or.  153;  4S0. 
V annoy,  Snyder  v.,  1  Or.  344. 
Van  Sant  v.  Portland,  0  Or.  395:  162. 

233,  247,  357,  417. 
Vanschoiack,  Wliiteaker  v..  5  0r.  113. 
Van  Winkle  v,  Johnson,  11  Or.  4G9: 

541.  ' 

Vau^din,  Miller  v.,  8  Or.  333. 
V  eedor,  Mosseau  v.,  2  Or   113 
Victor  V.  Davis,  11  Or.  447 
Vincent  v.  Umatilla  County,  14  Or. 

3/5;  159.  162,  163,  398,  505. 
Vincent,  Crei-liton  v.,  10  Or.  56. 

T72"'  ^^^^S^''  ^^^rJket  Co.  v.,  7  Or. 

Vogt,  Schmidt  v.,  8  Or.  344 
Voos,  King  v.,  14  Or.  91. 
^,7«;'^,J^' State  v.,  4  Or.  324. 
Waddell  V.  Steamer  Daisy,  2  W   T 

7G;  18,  95,  383. 
Wagonblast  v.  Whitney,  12  Or    81- 

520,  521,  524.  -  ^r.  0.5, 

Wait,  Davis  v.,  12  Or.  425. 

Wait,    Harvey's    Heirs  "v.,    10    Or. 

W^-J'  n  5.-  ?•  ^-  ^o-  ^^  3  Or.  91. 
Wait,  a  C.  R.  R.  Co.  v.,  3  Or.  428 
>V;ute,  Uaxtor  v.,  2  W.  T.  2''>8 
Wald,  Wilson  v.,  2  W.  T  .376 
^^^=^j'^^0Q  V.  Harrison,' 2  Or.  87-  96 

Waling  V.  Sloop  Christina,  1  Or.  430. 
\\a  ker  v.  Goldsmith,  7  Or.  161;  409 

Walker  v.  Goldsmith,  14  Or    WS-  8 

Walker,  Hughes  v.,  14  Or.  481 

359''''  ""■   '^''"^^''^y'  2  W.   T.   286; 
^'^foT'm^''''  P^ivcr  Mining  Co.  v. 

^^295.'^'^'""''   ^'''°*''  *  ^'^^  ""■'  1   Or, 
Wallace,  Baclielder  v.,  1  W    T   107 
Wallace,  Rogers  v.,  10  Or   3S7 
naU;i,  W.illa,  Moore  v     2W   T   le^ 
Wdla  Walla  Cou-,tyv.  Pil-J-^fi- 

T.  339;  24,  96.  97,  117   2i3°'54..  ^• 
Walla  Walla  au.l  Columbia  R."  r"  R 

to.,  McLormiek  v.,  1  W'.  x   5l'> 


653 


^^Vt^i??-&PCo.  v.Budd,  2 
VV.  T.  336;  52,    191,  468    469    -if)? 

^^.V''|J1;I'-^1^Co.:'bSv.!2 
Wallis,  Lin  Hey  v.,  2  Or  203 

''^fl70,n|4i3''"'°"'^""^"^^-58^^ 
Walsh  V.  0.  R.  &  k  Co.,  10  Or  230- 
246,  249,  364,  424,  4->5  49-^  ' 

Walts  V.  Foster,  12  Or.  247;  "307,  320 

Ward  V.  Buckley,  1  W.  T.  279;  237, 

Ward  V.  Moorey,   1    W    T    104-  n 

Ward,  Tippiu  v.,  5  Or.  450. 
Ward,  Watts  v.,  1  Or.  S6. 
Wardvvell  v.Paige,  9  Or.   517;   431, 

^o,  484,  ooS. 
Ware,  State  ex  rel.   Shaw  v.,    13  Or 

380. 
Warner  v.   Myers,  3  Or    '>IS-  •''S    ^o 

227,  252,  253,  333,  349, "393,  516.    ' 
Warner  v.  Myers,  4  Or.  72;  227,  393, 

I  Warner,  Myers  v.,  3  Or.  21"? 
Warren  v.  Hembree,  8  Or .""l  IS;  389 

Warren,  Rosen  v.,  2  Or.  17 
Warren,  Bailey  v.,  1  Or.  357. 
\Varrea,  Hinman  v.,  6  O.-.  4J5 
VVarren,  Rowland  v.,  10  Or    l->9 
Wasco   County,  Oregon  Steam  Nav. 

Co.  v.,  2  Or.  20 J. 
Wasco  County,  Bird  v..  3  0-  '^S'' 
Wasco  County,  Crossen  v.,  g'o"- "^15 
Wasco  County,  Cro.5.sen  v.,  10  Or   111" 
VVasco   County,    Gilliam   Co.    v      14 

Or.  525.  ' 

Wasco  Woolen  M.  Co.,  Dalles  Lum- 

bcr  iM.  Co.  v.,  3  Or.  527. 
Washburn  v.  Case,  1  W.  T.  253-  444 

5o7.  '        ' 

Washington  County,    Chatfield  v.,  3 
Or.  318. 

^^w'''!'°nn"  ^^'^^  <^«-  ^-  Kinnear,   1 

W   1.  99;  196,  47,  519,  538. 

Washington  Territory,    Clarke  v.,    1 

VV.  1.  08. 

Washington  Territor}-,  Corbett  v.,   1 

VV.  i.  4.31. 
Washingtoil   Territory,    Doctor  Jack 

v.,  2  W.  T.  101. 
Waslnngton   Territory,    E.lwards   v., 

Washington  Territory,  Elick  v.,  1  W. 

Washington  Territory,   Fox  v     2  W 
T.  297  "-^  ».,  ,^    »» . 

Wa^liington  Territory,  Freany  v.,    1 


654 


Table  of  Cases. 


Washington  Territory,  Hartigan  v., 

1  ^V.  T.  447. 
Washington  Territory,    Hayes  v.,   2 

W.  T.  286. 
Washington  Territory  v.  Heywood,  2 

W.  T.  180;  379. 
Washington  Territory,  Hill  v.,  2  W. 

T.  147. 
Washington  Territory  ex  rel.  Evans, 

Hill  v.,  2  W.  T.  147. 
Washington  Territory,  Leonard  v.,  2 

W.  T.  381. 
Washington   Territory,   Leschi  v.,   1 

W.  T.  13. 
Washington    Territory,    Lytle  v.,    1 

W.  T.  435. 
Washington  Territory,  McAllister  v., 

1  W.  T.  3G0. 
Washington   Territory,  Regan   v.,    1 

W.  T.  31. 
Washington    Territory,    Rosencrantz 

v.,  2W.  T.  267. 
Washington  Territory,  Schilling  v.,  2 

W.  T.  283. 
Washington  Territory,  Tliompson  v., 

1  W.  T.  547. 
V/ashington  Territory,  Walker  v.,  2 

W.  T.  280. 
Washington  Territory,  Wassissimi  v., 

1  W.  T.  G. 
Washington   Territory,   Watts  v.,   1 

W.  T.  409. 
Washington  Territory,  Yelni  Jim  v., 

1  W.  T.  G3. 
Wassissimi  v.  Washington  Territory, 

1  W.  T.  G,  30,  190,  427. 
Waterman,  Lemon  v.,  2  W.  T.  485. 
Waterman   and  Katz  v.  Phinney,   1 

W.  T.  415;  43. 
Waters,  David  v.,  11  Or.  448. 
Watkins  v.  Mason,  11  Or.  72;  33,  315. 
Watson  V.  Brooks,   11  Or.   271;    13G, 

141. 
Watson    V.    Dundee    Mortgage    and 

Trust  Investment  Company,  12  Or. 

474;  23,  398,  404,  407,  410. 
Watson,  Harrington  v.,  11  Or.  143. 
Watson  V.  Janion  &  Co.,  G  Or.  137; 

140,  376. 
Watson  V.  Smith,  7  Or.  448;  142,  204, 

344,  521. 
Watson,  Ludwick  v.,  3  Or.  256. 
Watson,  Yarnberg  v.,  13  Or.  11. 
Watticr  V.  Miller,    11   Or.   329;  199, 

223,  320,  321,  488,  55G,  5G9. 
Watts  V.  Ward,  1  Or.  8G;  391,  505. 
Watts  V.  Uerritory,  1  AV.  T.  409;  176, 

312,  358,  359,  522,  556. 
Watts  V.  United  States,  1  W.  T.  288; 

130,  172,  312,  358,  556. 
Waymire,  Hayden  v.,  10  Or.  307. 
Weaver,  Brummet  v.,  2  Or.  168. 


Webb  V.  Nickerson,   11  Or.  382;  27, 

29,  145,  318.  388. 
Webber,  O'Keefe  v.,  14  Or.  55. 
Weill  V.  Clark's  Estate,  9  Or.  387;  9, 

304,  320,  551. 
Weiner  v.  Lee  Shing,  12  Or.  276;  134, 

370,  454. 
Weise  v.  Smith,  3  Or.  445;  363,  566. 
Weiss  V.  Bethel,  8  Or.  522;  116,  158, 

218,  219,  235,  292,   375,  441,   462, 

563. 
Weiss  V.  Co.  Commissioners  Jackson 

Co.,  8  Or.  529;  38,  41,  48,  57,  287. 
Weiss  V.  Oregon  Iron  and  Steel  Co., 

13  Or.  496;  101,  102,  321,  322,  567, 

570. 
Weissman  v.  Russell,   10  Or.  73;  38, 

65,  473. 
Welch,  Shively  v.,  2  Or.  288. 
Welch,  Taylor  v.,  G  Or.  198. 
Welch,  De  Force  v.,  10  Or.  507. 
Welch,  Haines  v.,  14  Or.  319. 
Welch,  Wilson  v.,  12  Or.  353. 
Wellman  v.  Harker,  3  Or.  253;  319, 

446,  494. 
Wells  V.   Applegate,  10  Or.  519;  14, 

92,  143,  314,  4.-10. 

Wells  V.  Applegate,   12  Or.  208;  28, 

58,  62,  460,  401. 
Wells  V.  Neff,  14  Or.  66;  119,  401,  516. 
Wells,  Hannah  v.,  4  Or.  249. 
Wells,  Schwabacher  v.,  1  W.  T.  506. 
Wells,  Swegle  v.,  7  Or.  222. 
Wells,  Fargo,  &  Co.  v.   Wall,  1   Or. 

295;  234,  274,  319,  343,  400. 
Wells,  Fargo,  &  Co.,  Northern  Pacific 

R.  R.  Co.  v.,  2  W.  T.  303. 
Westbrook  v.  Chapman,  1  W.  T.  227; 

93,  142. 

Wetmore   v.    INIultnomah   Coiinty,   6 

Or.  403;  540. 
Wetmore  v.  Wetmore,  5  Or.  409;  218, 

330,  440. 
Wheelan,  Sanford  v.,  12  Or.  301. 
Wheeler  v.  Harrah,  14  Or.  325;  77, 

511. 
Wheeler  v.  Port  Blakely  Mill  Co.,  2 

W.  T.  71;  384,  385. 
Wheeler,  Carothers  v.,  1  Or.  194. 
Wheeler,  Frarey  v.,  4  Or.  190. 
Wheeler,  Smith  Bros,  v.,  7  Or.  49. 
White  V.  Allen,  3  Or.    103;  20,  110, 

234,  238,  239,  250,  253,  343,   345, 

457,  403,  480,  488,  557,  574. 
White  V.  Commissioners  of  Multno- 
mah Co.,  13  Or.  317;  127,  229,  230, 

321,  543. 
White  V.  Delschneider,  1  Or.  254;  238, 

4.39,  401. 
White  V.  Northwestern  Stage  Co.,  5 

Or.  99;  04,  193,  335,  343,  350,  'i07, 

471,  475. 


Table  op  Cases. 


655 


White  V.  R-ybxim,  11  Or.  450;  265. 
White  V.  Thompson,   3  Or.   115;  78, 

2.V2,  273.  278,  :U6,  4G6. 
Wliite,  Sohueider  v.,  12  Or.  503. 
Whitcaker  v.  Haley,  2  Or.  128;  129, 

401,  449,  531,  543. 
Whiteakur  v.  Vanschoiack,  5  Or.  113; 

222,  520. 
Whitley  V.  Murphy,  5  Or.  328;  2,  52, 

56,  G4,  157,  189,  331),  340,  343. 
"SYliitley,  Glaze  v.,  5  Or.  1G4. 
Whitlock  V.  Manciet,  10  Or.  1G6;  24, 

92,  270,  473. 
Whitlow  V.   Reese,  4  Or.   336;   158, 

478,  479. 
Wliitney  v.   Darrow,   5  Or.   442;    96, 

98. 
Whitney  and  State  v.  Johns,  3  Or. 

533. 
Whitney,  Smith  v.,  7  Or.  386. 
Whitney,  Wagonblast  v.,  12  Or.  83. 
Whittier,  Fuller,  &  Co.  v.  Blakely,  13 

Or.  546;  384. 
Wliittle,  Portland  v.,  3  Or.  126. 
Wilbur,  Chapman  v.,  3  Or.  .326. 
Wilbur,  Chapman  v.,  4  Or.  362. 
Wilbur,  Chapman  v.,  5  Or.  299. 
Wilco.x  V.  Keith,  3  Or.  372. 
Wiley,  Jonea  v.,  1  W.  T.  603. 
Wilev,    School   Land   Commissioners 

v.,''lO  Or.  86. 
Wiley,  State  v.,  4  Or.  184. 
Wilhelm   V.   Woodcock,    11  Or.  518; 

109,  211,  212,  276,  321,  403,  404. 
Willamette  Falls  Co.  v.  Clark,  1  Or. 

113;  334,  536. 
Willamette  Falls  Co.  v.  Perrin,  1  Or. 

182;  382. 
Willamette  Falls  Co.  v.  Remick,  1  Or. 

109;  198,  381,  .399. 
Willamette  Falls  Co.  v.  Riley,  1  Or. 

1S3;  324,  3S2,  455,  533,  535,  536. 
Willamette  Falls  Co.  v.  Smith,  1  Or. 

181;  113,  3.34,  .381,  494. 
Willamette  Falls  Co.  v.  Williams,  1 

Or.  112;  334,536. 
Willamette  Falls  C.  &  L.  Co.  v.  Kelly 

and  People's  Trans.  Co.,  3  Or.  99; 

192,  229,  232,  260,  267,  439,  566. 
Willamette  Freighting  Co.  v.  Stannus, 

4  Or.  2;n;  131,  242. 
Willamette  T.   &  L.  Co.,  Dice  v.,  8 

Or.  GO. 
Willamette  Trans.  Co.,  Moore  v.,  7 

Or.  ^o3. 
Willamette  Trans.   Co.,  Moore  v.,  7 
'    Or.  359. 
Willamette  Valley  and  Coast  R.  R. 

Co.,  Lakin  v.,  13  Or.  436. 
Willey  V.   Morrow,  1   W.  T.  474;  59, 

69,  70,  156,  197,  370,  474. 
Williams,  Ex  parte,  1  W.  T.  240;  303. 


Williams   v.    Ackerman,   8   Or.   405; 

376,  377. 
Williams  v.   Columbia,   1  W.  T.   95; 

23,  112,  144,  192,  196,  256,  4.32. 
Williams  v.   Gallick,   11   Or.   .337;  7, 

39,  67,  85,  273,  281,  299,  497. 
Williams  v.  Knighton,  1  Or.  234;  113, 

334,  453. 
Williams  V.  Miller,  1  W.  T.  88;  77, 

81,  86,  134,  14.3,  251,  255,  338,  429, 

432,  450,  457,  461,  463,  4G7,  470, 

475,  476,  515,  579. 
Williams   v.    Poppleton,    3   Or.    139; 

119,   13.3,    192,   193,  257,  260,  261, 

262,  267,  421,  423,  424,  427,  451, 

455,  456,  516. 
Williams  v.  Schmidt,  14  Or.  470. 
Williams  v.   Shelby,   2  Or.    144;  96, 

171,  372. 
Williams,  Bailey  v.,  6  Or.  71. 
Williams,  Willamette  Falls  Co.  v.,  1 

Or.  112. 
Willis  V.  Hoover,  9  Or.  418;  139,  143, 

563. 
Willis  V.  Or.  R'y  &  Nav.  Co.,  11  Or. 

257;  366,  .396,  422. 
Wills  V.  Wilson,  3  Or.   308;  24,  91, 

327,  430. 
Wilson  V.  Allen  and  Lewis,  11  Or.  154; 

25,  406,  450,  541. 
Wilson  V.  City  of  Salem,  3  Or.  482; 

157. 
Wilson  V.  Maddock,  5  Or.  480;  2G0> 

267.  , 
Wilson  V.  McEwan,  7  Or.  87;  5,  19, 

206,  209,  242,  513. 
Wilson  V.  Shively,  10  Or.  207;  6,  442, 

488,  490,»522. 
Wilson  V.   Shiveley,  11  Or.  215;  231, 

486,  488. 
Wilson  V.  Wald,  2  W.  T.  376;  37,  60. 
Wilson  V.  Welch,  12  Or.  353;  486,  569. 
Wilson,  Adams  v.,  6  Or.  391. 
Wilson,  Cogswell  v.,  11  Or.  372. 
Wilson,  Dick  v.,  10  Or.  490. 
Wilson,  Hackettv.,  12  Or.  25. 
Wilson,  Neil  v.,  14  Or.  410. 
Wilson,  O'Riley  v.,  4  Or.  96. 
Wilson,  State  v.,  6  Or.  428. 
Wilson,  Sujette  v.,  13  Or.  514. 
Wilt  V.  Buchtel,  2  W.  T.  417;  462, 

528. 
Wiueburgh  v.  Schaer,  2  W.  T.  328; 

105,  107. 
Wingard  v.   Jameson,   2  W.   T.  402; 

118. 
Winkle  v.  Winkle,  8  Or.  193;  9,  162, 

354,  502. 
Winn,  Opitz  v.,  3  Or.  9. 
Winter  v.   Norton,   1    Or.   42;  1,  77, 

253,  362. 
Winter,  Norton  v.,  1  Or.  47. 


656 


Table  of  Cases. 


Winter,  Norton  v.,  1  Or.  97;  1,  77. 
Winton,  State  v.,  11  Or.  456. 
Wiutzingerode,  State  v.,  9  Or.  153. 
Wirt,  Shortess  v.,  1  Or.  90. 
Wisner  v.  Barber,  10  Or.  342;  194. 
Witham  v.   Osburn,  4  Or.  31S;   123, 

304. 
Witljam,  State  v.,  6  Or.  366. 
Wolcott  V.  Macldeu,  10  Or.  370;  141, 

410,  551. 
Wokl,  Schmieg  v.,  1  W.  T.  472. 
Wolf  V.  Smith,  6  Or.  73,  38,  49,  390, 

467. 
Wolf,  Thompson  v.,  6  Or.  308. 
Wong  V.   Astoria,    13   Or.    538;    128, 

168,  170,  175,  360,  413. 
Wood,  Chavener  v.,  2  Or.  182. 
Wood  V.  Fitzgerald,  3  Or,  568;  123, 

155,  227,  438. 
Wood  V.   Mastick,  2  W.  T.   64;   71, 

137,  203,  353,  404,  411,  461,  463, 

511,  552.  563. 
Wood  V.  Riddle,  14  Or.  254;  159,  389, 

441,  442,  505. 
Wood  V.  Territory  of  Oregon,   1  Or. 

223;  183,  387,  561. 
Woodcock,  Wilhelm  v.,  11  Or.  518. 
Woodruff,  Carman  v.,  10  Or.  130. 
Woodsides  v.  Rickey,  1  Or.  108;  101, 

355,  464,  477. 
Woodward  v.  Baker,  10  Or.  491;  335, 

345,  347,  351,  401. 
Woodwai-d,  Baker  v.,  12  Or.  3. 
Woolf,  Thompson  v.,  8  Or.  454. 
Worthington,  Pnget  Sound  Iron  Co. 

v.,  2  W.  T.  472. 
Wren  v.  Fargo,  2  Or.  19;  96,  160,  240, 

256,  516. 
Wren,  Meeker  v.,  1  W.  T.  73. 


Wright  V.  Edwards,  10  Or.  298;  10, 

163,  354. 
Wright  V.  Young,  6  Or.  87;  274,  275, 

276,  279. 
Wright,  Oregonian  R'y  Co.  v. ,  10  Or. 

162. 
Wright,  State  v.,  14  Or.  365. 
Wyckoff,  Shorey  v.,  1  W.  T.  348. 
Wyman,  Hoganv.,  2  Or.  302. 
Yamhill  Bridge  Co.  v.  Newby,  1  Or. 

173;  61,  549. 
Yamhill    Co.,    Poppleton    v.,    8    Or. 

337. 
Yarnberg  v.  Watson,   13  Or.   11;  68, 

94,  364,  367. 
Yelm  Jim  v.  Territory,  1  W.  T.  63; 

45,  61,  64,  66,  69,  184,  187,  191,  246, 

266,  272,  318,  359,  365,  366. 
Yesler  v.  Oglesbee,  1  W.  T.  604;  60, 

118,  467,  527. 
Yesler,  Seattle  v.,  1  W.  T.  571. 
Yesler,  Colman  v.,  1  W.  T.  591. 
Yesler,  Kowslowski  v.,  2  W.  T.  407. 
Yocum  and  De  Lashmutt,  Sheppard 

v.,  10  Or.  402. 
Yocum,  Sheppard  v. ,  ]  1  Or.  234. 
Young  V.  Territoxy  of  Oregon,  1  Or. 

213;  529,  535. 
Young,  Mann  v.,  1  W.  T.  454. 
Young,  Fatten  v.,  9  Or.  195;  97,  468. 
Young,  Springer  v.,  14  Or.  2S0. 
Young,  Wright  v. ,  6  Or.  87. 
Zachary  v.  Chambers,   1  Or.  321;   8, 

524,  531. 
Zachary  v.   Swanger,   1   Or.   92;   192, 

260. 
Zephyr  v.  Brown,  2  W.  T.  44. 
Zieber,  Norman  v.,  3  Or.  197. 
Zingsem,  State  v.,  7  Or.  137. 


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